B e f o r e :
|Re K A child
Appeal against a costs order within private law proceedings
Crown Copyright ©
Her Honour Judge Brown.
The proceedings before me are in respect of a 10 year old boy who I shall refer to as K. There have been contested Children Act 1989 proceedings. On 23rd. August 2013 after a contested hearing, the Buckinghamshire Family Proceedings Court made a Residence Order in respect of K in favour of Mother, a contact order for alternate weekend contact and further orders for holiday and telephone contact between K with Father and a costs order against father in favour of mother in the sum of £5155.80.
The matter has come before me today on the appeal by the Appellant father against the order for costs. The substantive Children Act 1989 orders are not challenged. Throughout this judgment I shall refer to Appellant Father as father and the Respondent Mother as mother.
Both parties were unrepresented before me. Mother had been represented throughout by her solicitor Ms. Jennings. However, I am told that Mother can no longer afford legal representation and so she appeared in person at the appeal. I have not heard from Ms. Jennings directly in this matter but the views I have expressed about the submissions made by Ms. Jennings are based on her written submissions.
I say at once that I am aware how stressful and distressing these proceedings and this hearing have been for both parents and I commend both parties for the way in which they have conducted themselves before me. Being an advocate on one's own behalf is never an easy task and I take full account of the stress both parties are under.
I have considered all of the papers before me. I have no formal trial bundle but I am satisfied that I have had regard to the relevant statements and documentation.
I have kept at the forefront of my mind my limited role as an appellate court. I remind myself of CPR r52.11.
"(1) Every appeal will be limited to a review of the decision of the lower court unless(a) a practice direction makes different provision for a particular category of appeal;
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive (a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was;
(a) Wrong; or
(b) Unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
I have limited my role to that of review of the lower court. Clearly both parties did their best to make submissions but at times both parties strayed into giving evidence. I do not criticise either of them for that but I have endeavoured to separate submissions made from evidence given.
Key documents before me are the facts and reasons handed down by the Magistrates. There are in fact three sets of reasons handed down by the Buckinghamshire Family Proceedings Court. The first set is the reasons for the making of the substantive Children Act 1989 orders. The second set is the reasons given for the making of the costs order. Both these are dated 23rd. August 2013. Once father had appealed the order for costs the matter came before His Honour Judge Hughes. In a pre-amble to an order dated 20th. November 2013, His Honour Judge Hughes noted,
"Upon the court indicating the Justices Facts and reasons in relation to the costs issue were not sufficiently cogent and clear in relation to any findings they made regarding the litigation conduct of the Appellant and it was necessary for them to set out with some particularity the reasonableness or otherwise of the appellants litigation conduct."
His Honour Judge Hughes ordered that the Justices perfect their facts and reasons and the matter was to be listed before His Honour Judge Hughes.
On 19th. December 2013, the Justices handed down further facts and reasons to explain their decision in respect of the order for costs. In fact, one of the Justices had retired and therefore the remaining two Justices completed this task.
The matter then came back before His Honour Judge Hughes on 31st/ January 2014. The court ordered that
"1. The matter be adjourned to the first open date after 21 days, time estimate 2 hours
2. The respondent do file a detailed Bill of Costs for Assessment to justify the figure they have claimed in 14 days
3. The respondent has permission to respond to the Appellant document.
A bill of costs for assessment was duly filed and served.
The appeal was then listed before me on 12th. March 2014.
I should also note that at the commencement of the appeal, mother submitted that His Honour Judge Hughes had determined that the appeal would be allowed and that the only issue to be determined was in respect of the quantum of costs Father would be ordered to pay. It was clear to me having reviewed the file that there was no order which reflected such a ruling. I gave mother the opportunity to telephone Ms. Jennings to clarify why she believed the hearing before me had been limited in this way. To my knowledge, the Respondent did not avail herself of this opportunity. I therefore heard the appeal on the basis that His Honour Judge Hughes had made no such ruling.
Before turning to the details of this particular appeal I am going to set out briefly the background to this case. When child K was born in 2006 both parties were living in Milton Keynes. The parties separated in 2008, K remained living with mother and having contact with father. Both parties accept that there is an extremely difficult relationship between them and both accept that there have been difficulties over arranging contact between K with Father. It is accepted that despite difficulties, K has always had contact with Father.
There were contested proceedings in 2011 when Mother together with her husband, her other child and her husband's child, sought permission to move to relocate permanently to Northern Cyprus. Father objected to K moving to Northern Cyprus and there was a three day contested hearing in the Milton Keynes County Court. I have not seen a judgment from that hearing but it is accepted by both parties that mother's application for permission to remove K permanently to Northern Cyprus was refused. I understand both parties paid privately for representation and Father told me at the time that his legal costs amounted to nearly £10,000.
There also seems to be common ground that although there were continued difficulties in communication between the parties between 2011 and 2013 there was ongoing contact between K and father with father seeing K at least one evening per week and every other weekend from Saturday morning until Sunday evening. It seems that matters were running relatively smoothly until May 2013.
It is clear from the papers and confirmed to me by father that in May 2013 he became suspicious and subsequently learnt that mother was moving the family from their home in Milton Keynes. He told me during this appeal hearing that he was concerned that given the history, mother was in fact going to relocate K to Northern Cyprus despite the court hearing in 2011. In fact Mother planned to relocate the entire family to Kent and it is accepted by her that she gave father no notice of this move which would entail a change of school, home and contact regime for K with Father.
There is a dispute about the precise time when father knew that mother was in fact moving with the family to Kent rather than Northern Cyprus. I have looked through the original court statements and it is clear that by 9th May father knew mother was moving to Kent because he has included that in his statement dated 9th May 2013. In any event father attended at Milton Keynes County Court on 9th May 2013 and secured an order prohibiting mother from removing the child from the jurisdiction.
Mother and her family including K, relocated from Milton Keynes to Kent on 9th May 2013. Mother had secured a place at a school in Kent for the two other children but she told me that she could not secure a place at any school for K until K was actually living in the county. Therefore the agreed facts of the case are that on 9th May 2013, mother, without any consultation with father moved K from his home, took him out of school, relocated to Kent and by so doing knew that the contact arrangements which included midweek contact would have to change because it would simply be impractical given the geographical distance between the two families.
The matter returned to court on 16th May 2013 and mother, who was intending to take K and the family to Northern Cyprus for two weeks in the summer 2013, gave undertakings that she would return K back to the jurisdiction after the holidays. Due to mother's relocation to Kent there were then cross-applications for residence, both parents applying for residence of K. Father was upset and concerned that K had been removed from Milton Keynes and removed from the school that he was in. One of his concerns was that K had missed a great deal of school, up to 30 days, and he was very concerned that without his close supervision at school K would continue to miss a lot of school.
Mother could give no cogent reason for her failure to notify Father of this move save that it is clear Mother wants no communication with Father and told me that he had made her life a "living hell" for six years. Wherever the fault lies in the poor communication between these parents, the fact remains that these parents share parental responsibility for this child and this Mother acted unilaterally thereby deliberately sidelining any input this father had into the future care arrangements for K.
In terms of the substantive Children Act 1989 applications Mother argued that it was obvious that K should remain with her, he had always lived with her and there were no real concerns about her ability to care for K. Mother accepted that K had missed school but told me that this is because he is particularly good at a particular sort of dance for which he has represented England at a national level and that any absences have been authorised and due to this sport for which he is particularly talented.
Unsurprisingly within these proceedings, the court ordered a Section 7 Cafcass report and Mr Brian Shields Cafcass officer reported dated 8th August 2013. He set out his conclusions in an eight page report and his recommendations are as follows.
1. That K is to continue to live with his mother.
2. That father is to have contact with K as currently directed which was alternate weekend contact.
3. There were further recommendations including that mother provide father with a schedule of dance competitions for the remainder of 2013 and at agreed regular intervals and that mother is to give an assurance to the court that K will not miss school or contact as a result of competitions.
4. There should be consideration given to father taking K to competitions as part of his contact and that there should be any other contact as agreed between the parties.
Father was not prepared to accept the recommendations of the CAFCASS officer because he did not accept that Mr Shields had looked sufficiently carefully at why K had missed so much school and therefore father pursued his application for Residence.
Both parties informed me that at the beginning of the contested hearing which was listed for two days over 22nd and 23rd August 2013, both parents sought a Residence Order in respect of K but there was agreement that the noncustodial parent would have fortnightly weekend contact from Friday to Sunday, the only dispute was a small matter in relation to the drop-off point on the Sunday evening. I am told that the Justices heard from mother and her husband, from father and his partner, from a further witness on behalf of father who coached K during a sporting activity at the weekend and also from the Cafcass officer Mr Shields. There is no dispute between the parties that all the evidence and the submissions were heard on the first day.
It is noted in the Justices's reasons that at the end of the first day, father was asked whether he wished to continue with the case. He said that he did and therefore the matter went over to the second day for the facts and reasons to be given. The magistrates then handed down their decision and reasons on 23rd August, they made a residence order in favour of mother, they ordered contact for K with father on alternate weekends. Once these decisions had been handed down, Ms. Jennings on behalf of Mother made an application for costs against father. It was submitted that the amount of the costs came to £5,155.80.
The Law and the correct test to be applied when considering an application for costs in Children Act 1989 proceedings.
The first question I ask myself is how were the magistrates directed, what test should they have applied and which factors should they have considered, when exercising their discretion to make a costs order against Father.
I have seen the written submissions/ skeleton argument put forward by Ms. Jennings and I will return to this, in due course.
Under the Civil Procedure Rules 1998 at Rule 44.2 subparagraph (2) the Rule is as follows. If the court decides to make an order about costs:
(a) the general Rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order
Under the Family Procedure Rules 2010 Rule 28.2 subparagraph (1) expressly disapplies that Rule within family proceedings and therefore there is no presumption that the unsuccessful party will be ordered to pay the costs of the successful party.
Under FPR 28.1 the rule is that,
"The court may at any time make such order as to costs as it thinks fit."
Looking at the Red Book the following guidance is given. "Orders for costs in children proceedings generally will be rare. but the starting point is likely to be R v R (Costs: Child Case)  2 FLR 95."
Ms. Jennings did not refer the case of R v R to the Justices. The headnote reads as follows,
"Although there was a general practice not to order costs in cases concerning children courts retained a discretion to do so and in exceptional circumstances might be justified in ordering costs. It was unnecessary and undesirable to attempt to limit or place into rigid categories the cases in which courts might order costs but amongst those cases would be those where a party had been guilty of unreasonable contact. The unreasonable conduct which might justify an order for costs was not unreasonableness in relation to the child concerned but unreasonableness in the conduct of the litigation although parents should not be deterred from putting cases concerning children before the courts it would not be wrong to discourage unreasonable parents from putting forward unreasonable views."
On the facts of this case the judge was justified in finding that the father had acted unreasonably in relation to his conduct of the litigation. As I have said it is a great pity that this case was not put before the magistrates and it is I who have had regard to it in considering this appeal. Neither parent as they are litigants in person have been able to put forward case law and of course I do not criticise them for that.
It is important when considering any application for costs to be aware that FPR 28.2 does NOT disapply CPR 44.2 (4),(5) and (6). In my judgment it is necessary to set these out in full.
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including:(a) the conduct of all the parties;(b) whether a party had succeeded on part of his case, even if he has not been wholly successful; and(c) any payment to the court or admissible offer to settle made by a party which is drawn to the court's attention and which is not an offer to which costs consequences under part 36 apply.
(5) The conduct of the parties includes:(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
(6) The orders which the court may make under this rule include an order that a party must pay (a) a proportion of another party's costs(b) a stated amount in respect of another party's costs;(c) costs from or until a certain date only;(d) costs incurred before the proceedings have begun;(e) costs relating to particular steps taken in the proceedings(f) costs relating only to a distinct part of the proceedings; and(g) interest on costs from or until a certain date, including a date before judgment
The requirement to consider these rules was expressly considered in the case Re T  UKSC 36, again a judgment referred to in the Red Book and a judgment of the Supreme Court which considers costs. At paragraph 10 the provisions relating to costs are set out as follows,
"Family Procedure Rules 28.1 provides that: "The court may at any time make such order as to costs as it thinks just". This is not an unfettered discretion for FPR 28.2 makes applicable to family proceedings other than financial remedy proceedings, the majority of the Rules in relation to costs of the CPR. The most significant of the Rules excluded is the general Rule that costs follow the event quoted above in CPR 44.3(2). " (set out above.)
The court went on then at paragraph 11 to say the following,
"4(b) is relevant in relation to a regime where the general Rule in 2(a) applies. For this reason we do not see that it has any direct relevance to family proceedings. 4(c) can have no relevance to public law proceedings and can thus be disregarded in the present case. The other Rules are simply examples of circumstances that will be relevant when considering the result that justice requires in the individual case. In family proceedings however there are usually special considerations that militate against the approach that is appropriate in other kinds of adversarial civil litigation. This is particularly true where the interests of a child are at stake. This explains why it is common in family proceedings and usual in proceedings involving a child for no order to be made in relation to costs. The reasons for departing from the principle that costs normally follow the event differ however depending upon the nature of the family proceedings. On appeal it is necessary to identify the policy considerations that should inform the approach to costs that is required in the interest of justice in care proceedings."
Whilst the case of Re T was dealing with a public law matter there was acceptance of this reasoning by Wilson LJ in the case of Sutton London Borough Council v Davis where he gave the following views.
"Where the debate surrounds the future of a child the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate nor does it wish to reduce the chance of their cooperation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations but it also applies to proceeding to which the local authority are a party but even when the local authority's application for a care order is dismissed it is unusual to order them to pay the costs of the other parties. The proposition is not applied where for example the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable."
It is further regrettable that Ms. Jennings did not refer the Justices to
In the matter of N (A child) A and G and N (by his Guardian, CP). I have inserted paragraphs 43 57. Mr. Justice Munby (as he then was) writes as follows,
43. Costs discussion
44. It is I think convenient to consider first the costs of the section 8 issues.
45. There is, in my judgment, some force in many of the points Dr Pelling makes, in particular his contention that a much more discriminating approach to the father's various applications is required than the 'all or nothing' broad-brush approach adopted by the mother. And it is a fact that, even if only responsively to the father's many applications, the mother did make and pursue unsuccessfully some applications of her own. Furthermore I do take leave to wonder whether the mother is really justified in saying that she spent, or that if she spent she reasonably spent, as many as 650 hours in preparing her case.
46. As against that the father's approach, in my judgment, was unreasonable: unreasonable both in parts, though not, I emphasise, in every respect, and also, given the sheer number and reach of his applications no fewer than 30 applications arising out of what was after all a consent order unreasonable in its scale and overall effect.
47. That said, the fact that a parent has litigated in an unreasonable fashion may open the door to the making of an adverse costs order; but it does not of itself necessitate the making of such an order. There is, at the end of the day, a broad discretion to be exercised having regard to all the circumstances of the case. And a judge must be careful not to fall into the trap of simply assuming that because there has been unreasonable behaviour in the conduct of the litigation an order is therefore to be made without more ado. Careful attention must be paid to all the circumstances of the case and to the factors which, on the authorities I have referred to, indicate that normally it is inappropriate to make such an order factors which do not simply disappear or cease to have weight merely because the litigation has been conducted unreasonably.
48. I have to say plainly that the father's litigation conduct has, in my assessment, come very close indeed to justifying the order the mother seeks. But I am persuaded, on balance, that it would not be fair, just or reasonable to make that order, not least and this is an important factor in my thinking because of the likely effect the making of such an order will have on relations between the parents and thus, and crucially, on N.
49. There is, if I may say so, much wisdom in what Wilson J said in London Borough of Sutton v Davis (Costs) (No 2)  2 FLR 569 at pages 570-571:"Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them."
50. Or, as Hale J put the point in R v R (Costs: Child Case)  2 FLR 95 at page 97, where she referred 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."
51. I do not take so bleak a view as the mother's when she suggests that matters are already so bad that they can get no worse. Moreover, it needs to be remembered that the mother is not blameless in all this: see, in particular, what I said in Re N (A Child), A v G  EWHC 1807 (Fam) at paras  and . There is, I fear, a very real risk that were I to make the order the mother seeks she would treat it as a complete vindication of every negative view she has about the father an outcome that would assist neither the parents nor their son.
52. For all these reasons I have concluded that notwithstanding the way in which the father has chosen to conduct this litigation, the proper order to make is that there should be 'no order' in relation to the costs of the section 8 issues. I make it clear, however, that if there is any further continuation of the litigation by the father making any further unsuccessful applications, a very different order may very well have to be made.
53. I turn to the costs of the disclosure issue, where I accept that somewhat different considerations apply.
54. I make clear that, despite Ms Farror's submission to the contrary, I take no issue in the particular circumstances of this somewhat unusual case with the quantum of the costs being claimed, whether in respect of the quantum of Dr Pelling's hourly charging rate or in respect of the number of hours he worked. Dr Pelling may be unqualified but he is plainly highly knowledgeable and experienced in such matters and he is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases.
55. The real question, to my mind, has nothing to do with the quantum of the costs being claimed, but rather with whether, in all the circumstances, it is appropriate to make any order at all.
56. In my judgment it is not. I appreciate that, from one perspective, the child is less directly implicated in the disclosure issue than in the section 8 issues, and that the dispute here is not so much between the father and the mother as between the father and the guardian, but one cannot ignore the fact that but for the happenstance of litigation (which led to the disclosure issue being 'hived off' as a separate issue at the hearing on 5 May 2009) the disclosure issue would have been dealt with as part of the overall litigation. Nor can one ignore the fact that the guardian participated in this issue in accordance with directions that I had given.
57. In my judgment, the appropriate order to make in all the circumstances is that there be 'no order' as to these costs.
Therefore having reminded myself of the relevant rules and case law, it seems abundantly clear that the starting point and the presumption is that there is no order for costs in Children Act 1989 cases and that although the Family Court may make any such order as to costs as it thinks fit, departure from the no order for costs presumption, must only be undertaken having considered the factors set out under CPR 44.2 (4), (5) and (6) and having considered relevant case law.
Submissions made to the Justices.
So what assistance did the magistrates have in considering whether a costs order was the appropriate order in this case? Ms. Jennings on behalf of Mother filed written submissions after the magistrates had handed down their reasons on the substantive applications. I should say that father could not remember being handed the written submissions but mother told me that Ms Jennings handed the written submissions to father. For the purposes of this hearing I will accept that Ms Jennings passed the written submissions to father. Neither father nor mother could remember the matter being adjourned, even for a short period, to enable father to read the written submissions. If true, this concerns me, but I have not heard from Miss Jennings on that point. It is important that I set out the first part of Ms Jennings' written submissions as they appear on the printed page.
"As you will be aware the general principle in proceedings is that a losing party would pay the costs (CPR 44.2).
It is less common in children matters and the General Rule does not apply but I would like to refer you to FAMILY PROCEEDINGS RULES 28.1 THE COURT MAY AT ANY TIME MAKE SUCH ORDER AS TO COSTS AS IT THINKS FIT.
CPR 4.3(c) except in cases where essential Respondent must not be aware of application the applicant SHOULD TAKE STEPS TO NOTIFY THE RESPONDENT ...
You have discretion in regard of costs and that discretion should be exercised when a party has acted unreasonably and with folly."
Ms Jennings referred the Justices to the case of HH v BLW  EWHC 2199 (Fam). The headnote reads,
"Application for permission to appeal against a District Judge's order for costs against a father in contact proceedings. Application refused on the basis of the proportionality of the appeal to the sum in issue."
The case was in relation to a father seeking contact to his daughter who at the time of the proceedings was rising 16. The court made an order for costs against the father when the court made no order on his contact application, after the CAFCASS officer ascertained that the child did not wish to see him.
The first hearing dispute resolution appointment took place on 14th March when the child was 15. The child was due to be 16 in June of that year, some three months later. At that first appointment the Cafcass officer met the child who reported a firm view that she was unwilling to see her father at that stage. In the light of that and without resistance by or on behalf of the father, the District Judge ordered that there be no order on the father's application as to contact. At that point the mother's solicitor applied for costs. After hearing further submissions on behalf of each parent, the district judge ordered the father to pay the mother's coats which were summarily assessed in the amount of £2,468.00. The father applied for permission to appeal against the costs order. The appeal was heard by Mr. Justice Holman.
Mr. Justice Holman went on to find in this case that the District Judge was wrong to find that it was not appropriate for the father to use the court as a means to ascertain the wishes and feelings of his daughter. He took the view that it was perfectly reasonable and justifiable for the father to have made the application but that it would of course rapidly have become very unreasonable and indeed misconceived to proceed with it a moment beyond the course and conduct of the FHDRA on 14th. March 2012. If, having heard the report from the Cafcass officer the father had nevertheless persisted with his application then he would soon have been acting with folly but he did not do so.
Mr. Justice Holman did not grant permission to appeal on the grounds of proportionality however he noted that if the matter had been before him he could not conceive that he would have made any costs order if the hearing had been before him."
Ms Jennings sought to rely on this case and to extrapolate from this case a general principle that the discretion to award costs "should be exercised when a party has acted unreasonably and with folly."
It seems to me that the ratio of this judgment is that proportionality may require the refusal of permission to appeal even if the first instance decision was wrong ( which was the view taken by Holman J in this case.)
Ms. Jennings submitted in writing the following (as set out by Ms. Jennings);
"In that case there was a reasonable F father but in this case we say F acted UNREASONABLY throughout, that he acted with FOLLY. We go further and say he acted with MALICE. Certainly we would say that his litigation conduct would justify a costs order and it is the right thing to do. His original application made on 9th May made without any attempt to discuss with mother, without notice to mother and without notice to us."
What is relied upon is that father told the judge that he believed mother was moving to Northern Cyprus although he knew from 8th May that she was moving to Kent. In fact in father's statement of 9th May father states very clearly that he thinks mother is moving to Kent.
Ms Jennings further submits that initial application was unreasonable and malicious. She writes,
Ms. Jennings justifies that submission because she states that although Father was given a "great deal of reassurance" he "took the order to the police station and he says was interviewed by CID leading to the police visiting mum in Kent and causing a great deal of distress to her, her husband and the three children."
Ms Jennings then goes on to say that when the matter came before the District Judge on 16th May, the application was "in effect dismissed" but that is not correct. The application was compromised by the mother giving undertakings which is a very different matter to the application being dismissed.
Ms Jennings then relies on the fact that it was unreasonable of father to make an application for residence of K because father has never expressed any concerns about mother's parenting skills. Further it is relied upon that father should not have continued to a final hearing with his contested application for residence of K, once there was a clear and unequivocal recommendation by the CAFCASS officer Mr. Shields that K remain with mother.
Miss Jennings continues in her submissions,
"Even as late as yesterday having heard all of the evidence and you asked if he wished to pursue his application he said he did resulting in another day in court, the fourth day of court proceedings mother has had to endure."
So that was the basis of the application put on behalf of mother by Ms Jennings.
Father told me that he did not really say very much when asked to respond to the application for costs save that he simply said (and this is accepted by Mother) that he was simply acting as a loving father. Father also believes that Ms Jennings put forward a summary of costs although again father could not remember and neither could mother.
The facts and reasons.
Looking at the first set of facts and reasons dated 23rd August 2013 in relation to the substantive Children Act 1989 orders, the following comments were made.
Under the heading "Decision" the Justices find the following,
"We have decided that K is happy and very well looked after by his mother and that despite the best intentions of his father a move would be very detrimental and unsettling for K. We note that Mr. Shields has no concerns for K in his mother's care and strongly recommended that K remain with his current family unit. We are therefore going to grant a residence order in favour of mother. We are going to grant a contact order in favour of father in the same terms agreed on 16th May 2013 and the details are set out above. It is K's wish that his mother attend the dancing competitions and that his father continues with rugby training. It is important to have the special interest with each parent. If either activity interferes with weekend contact the court would expect the parents to negotiate."
It is of note in this context that there is no finding that father has behaved in a reprehensible fashion, unreasonably, with malice with folly or in any other way. Indeed the only comment relating to father's conduct in the original facts and reasons is the phrase "despite the best intentions of his father."
Having handed down these facts and reasons the Justices then heard the application for costs as I have described. Father had just been told of the decision that K would not be living with him. He told me that he was trying to consider that and clearly he had found it emotionally upsetting. Even accepting that Ms Jennings had passed the written submissions on costs to him, there was no suggestion by any party that he be given time first of all to consider the judgment handed down or secondly to read through the written submissions or the authority provided. It appears that Ms Jennings went straight into her application for the costs.
The hand written notes made by the Justices and signed by the chair of the Magistrates read as follows,
"We have been made aware of CPR 44.3 and have taken into account the points raised by own legal adviser. We have considered the conduct of all the parties, whether party has succeeded in part, even if not wholly, conduct before as well as during proceedings, whether it was reasonable for a party to raise pursue or contest a particular allegation or issue or the manner in which a party have pursued or defended his case on a particular allegation or issue. We therefore believe that it is right to award costs to Mother to the sum of £5,155.80 because of Father's tenacity in pursuing a case which had little merit and which he could have discontinued after seeing the CAFCASS report."
There is a written note of the arguments, the note of Miss Jennings' argument is as follows:
"Say he acted unreasonably and with folly and further with malice. On 9th May 2013 without notice he made an ex parte application why?
Civil Procedure Rules essential cases only should be not on notice. Find it hard to believe a solicitor. Order made on wrong information he did not tell judge she was moving to Kent. He knew a judge would not have granted prohibitive steps order had he been honest If judge had not been misled order would not have been granted. In face of court made an application for residence, District Judge Perusko raised his eyebrows. Up to move to Kent he had made no such application, he made this spurious application just because he did not consent for move to Kent."
This seems to have been responded to by father. The note is very much in abbreviated form and reads,
"If folly or spurious are tantamount to school and travel he has to do I am only concerned father. Have already spent £20k stopping my son going to Cyprus."
Clearly there was a concern at some point by Father that Ms Jennings had intimidated him because Ms Jennings replied "I have not intimidated him, I had just advised him of the risks involved".
Father then responds "yes, she informed me not three times in the same day".
The note then reads, "Clerks advice Rule 44:3 CPR read to the bench.
The note concludes,
"We have considered the points raised above and we believe it is right to award costs to mother due to the tenacity of Father, which he could have abandoned after seeing the Guardian's report. Costs awarded in the sum of £5,155.80 against father to mother. Father appealed that decision."
I then have the third set of facts and reasons (the second in relation to the costs order) pursuant to the order of His Honour Judge Hughes dated 20th November 2013.
As noted, the magistrates then considered their decision again, one of the magistrates having retired the two remaining magistrates considered their reasons.
At the beginning of the reasons the magistrates set out the submissions by Miss Jennings as follows:
"The solicitor on behalf of Mother stated that the general principle in proceedings is that a losing party would pay the costs in accordance with the Criminal Procedure Rules 44.2,[sic] However, accepted that in children matters it is less common and the general Rule does not apply but referred to the family proceedings Rules 2010, 28.1 where the court may at any time make such order as to costs as it thinks just. It was stated that the court had discretion in regard of costs and that discretion should be exercised when a party had acted unreasonably and with folly. The case of HH v BLW  EWHC 2199 (Fam) wase referred to."
In the "Decision" part of the Facts and reasons the following is said,
"We have been made aware of the Civil Procedure Rules paragraph 44.2 and taken into account the relevant criteria. We have considered the points raised on behalf of mother in particular to the conduct of father throughout the proceedings and the manner in which the application was pursued. We find that father was aware that mother intended to move from Milton Keynes when he issued a prohibitive steps application and that move was to Kent. We believe he pursued his application for residence motivated by this and his tenacity in continuing with the application for residence was driven by his displeasure.
The Cafcass report dated 8th August 2013 made a clear recommendation for K to continue to reside with mother and for contact to father to continue as currently directed. Father could have withdrawn his application at that time and saved two days of court hearing and the attendance of Mr. Shields who completed the Cafcass report. We acknowledge that the Family Procedure Rules of 2010 disapply that part of the Civil Procedure Rules that provides a starting point that the unsuccessful party pays the costs. In exercising our discretion whether to make such an order we have considered all of the circumstances and the conduct of father throughout the proceedings was both tactical and wholly unreasonable we believe, therefore that it is right to exercise our discretion and award costs to mother in the sum of £5,155.80.
Analysis and decision.
My concerns about the way in which this matter has been considered are as follows. Firstly, the Justices were directed in August and in December to Civil Procedure Rule 44.2(2). Whilst that may be an interesting background when considering costs, it should only ever be referred to in these circumstances, if there is then a clear direction that it is expressly disapplied by Rule 28.2 of the Family Procedure Rules. It seems to me that in December the legal advisor did direct or advise the magistrates of this disapplication because that is noted in the decision. However, I am concerned about the assistance the Justices received in August 2013.
In the second paragraph of her submissions, Ms. Jennings writes, that "it is less common in children matters and the general Rule does not apply."
In my judgment, it was the duty of Ms. Jennings to ensure that any reference to Rule 44 .2(2) of the Civil Procedure Rules should have been immediately followed by the disapplication under Rule 28.2 of the Family Proceedings Rules and an express direction that CPR 44.2(2) does not apply.
Secondly the submission immediately following the reciting of CPR 44.2(2) that "it is less common in children matters" is in my judgment simply wrong. The starting point is that there should be no order for costs and that departure from this rule is rare. The phraseology used by Ms. Jennings, does not convey the exceptional nature of the making of such a costs order in this sort of case. It is most unfortunate that Ms. Jennings did not refer the Justices to the guidance in the Red book. Had she done so, she may have reminded herself to refer the Justices to R v R , Re T and Re N,A,G and N which in my judgment would have assisted the Justices greatly in exercising their discretion on this matter.
Nowhere in Ms Jennings' submissions nor in the reasons handed down by the magistrates both in August and in December 2013, is there any reference to it being unusual for costs to be awarded in children cases. Nowhere is there a direction that the starting point is that there is no order for costs in Children Act proceedings and that it is rare to depart from that starting point.
I am further concerned by the reliance that Ms Jennings invited the Justices to place on the case of HH v BLW. The facts of that case are wholly distinguishable from this case. That was a case where a father was applying for contact to a child who was rising 16. It is exceptional for a Section 8 order to be made in respect of a child who has reached the age of 16. However, even in those circumstances, Mr. Justice Holman found that the father had no other way of objectively ascertaining the views of his child as to whether she wanted contact with him or not. Mr Justice Holman took the view that it was perfectly reasonable and justifiable for the father to have made the application but that it would have become unreasonable and indeed misconceived if he had proceeded past the first FHDRA, which the father did not. Mr Justice Holman would not have made a costs order in those circumstances.
Ms Jennings invited the Justices to rely on this case first of all to extrapolate a proposition that if a parent continues with litigation post receipt of the recommendation of the Cafcass officer then that is by itself unreasonable. Further, she appears to extrapolate that the test to be applied is whether a parent has acted with folly.
In my judgment the Justices were not addressed on the clearly distinguishing facts of that case. Secondly in my judgment, undue weight was given to dicta in that case which although may be of assistance to a court as to the sort of conduct that may be relied upon when considering conduct, it does not form a basic test namely "acting with folly", which should be given precedence over the starting point which is there should be no order for costs in Children Act cases, or that it is unusual to make a costs order. In my judgment the learned magistrates misdirected themselves as to the starting point when considering whether to exercise their discretion as to whether a costs order should have been made.
Nowhere in Ms. Jennings's written submissions is there a direction that although CPR 424.2(2) is expressly disapplied, the court must take into account CPR 44.2(4), (5) and (6)
Ms. Jennings should have applied the facts of this case to CPR 44.2 (4) and (5) rather than placing undue weight on a particular authority which as I have said is very specific on its facts.
One of the matters that the court will have regard to is the conduct of the parties and as I have already set out when reading through the case of Re T the conduct of the party includes conduct before as well as during the proceedings and the efforts made if any before and during the proceedings, in order to try and resolve the dispute.
I am particularly concerned about the equality of arms in this case. The father was not represented throughout these proceedings. He had had experience of mother wishing to relocate K to Northern Cyprus. He had been involved in litigation for three days to oppose permission being given for K to leave the jurisdiction. In my judgment it is therefore unsurprising that this father, given that history and learning indirectly that mother was moving from her home and also knowing that a holiday in Northern Cyprus was booked for that year, that this father became fearful that K would be removed from his home without Father's knowledge. It is not unreasonable for this father to have been extremely concerned about where mother was moving K to whether it was within this jurisdiction or not.
Reliance is placed by Mother on father's unreasonable behaviour in making an ex parte application for a prohibited steps order on 9th. May 2013 and the Justices relied on those submissions as part of their reasoning for making a costs order. However, the Justices did not consider the effect on this father of the previous litigation history nor did they consider that this mother had unilaterally decided to move this child away from the area and away from the school without any consultation with his father who holds parental responsibility for K. Nowhere in any of the submissions or in either sets of reasons has this behavior on the part of mother been considered and the impact on father of this. This mother moved this child knowing that father would be concerned about it and knowing that it would ride a coach and horses through a settled contact regime, namely that father saw this child once every four days either through visiting contact or through weekend contact. It hardly seems surprising to me that father with this history and with this lack of consultation went into court on an emergency basis seeking a prohibitive steps order that mother cannot remove this child from the jurisdiction. It is quite wrong to say that father did not inform the court that mother's plans were to move to Kent. It states it plainly in his statement. The point is that father did not know what Mother's settled plans were because she had not seen fit to discuss them at all. In terms of that lack of communication I know not where the fault lies in terms of historical difficulties but the sad situation is that these parents or the relationship between them is so poor, that there is really no communication at all. However, in my judgment none of that justifies mother removing this child from his home and his school without any reference to father at all and in my judgment that conduct by mother is to be deprecated. Frankly if there was any thought about a costs order being made in May 2013, in my judgment there may have been a strong argument for a costs order being made against mother.
I therefore find it very difficult to understand why the learned magistrates took into account a hearing in May 2013, when father had only just learnt that his son was being removed from the area and from his school. He thought it was for Kent, he was unsure and he had a history of mother wanting to relocate this child to Northern Cyprus. In my judgment when the full picture has emerged no criticism should have been made towards father and it should have played no part in the consideration as to whether a costs order should have been made at the end of the August hearing. However the learned magistrates have placed weight on this having heard the submissions of Miss Jennings.
The second major plank of the decisions made by the magistrates is that father should not have continued with his application once he had received the Cafcass report. In my judgment, if the courts were justified in making orders for costs against parents who continued with their litigation after receipt of the Cafcass reports, costs orders would be made in almost every Children Act case. It is a very common occurrence that when parents receive Cafcass reports, one party or another does not accept those reports and they wish to challenge those reports. In my judgment there is nothing in the FPR or case law to suggest that a lack of acceptance of a Cafcass report in itself would justify a costs order being made. It may be a factor to be considered on the particular facts of any case.
The Magistrates state that father unreasonably continued litigation due to his "displeasure." The Magistrates make no reference to Mother's lack of discussion or consultation with father about K's relocation or the effect such a relocation would have on his contact schedule. Furthermore, in my judgment, Father had a legitimate concern that he wished to raise with Mr. Shields in cross examination, namely that K had missed, he says, up to 30 days off school and that that is something he wished to ask the Cafcass officer about. Father's case was that he wanted to be near to K's school in order to ensure K's regular attendance. In my judgment it is the sign of a loving father to question why his son has taken so much time off school. I understand mother's argument that K has a particular and unique talent which should be encouraged and that any absence from school is authorised for that reason. However, that does not render father's concern unreasonable.
My next concern is that the magistrates seem to have made the costs orders based on the father's tenacity. In my judgment tenacity, if indeed that is what father has shown, is not in itself sufficient to make a costs order against Father. There was no criticism of this father in the reasons of the substantive application that would justify the making of a costs order and indeed the only comment made about father's conduct was that he had acted "with the best of intentions."
Finally I am very concerned that the magistrates simply accepted the figure of £5,155.80.
I note that in the December reasons it is recorded that "We considered the advice from our legal adviser contained in para44.2 which was read in full in open court." It is unclear whether that means that all 7 subsections of that rule were read out.
I note that there is reference in the hand written notes in August to factors set out under CPR 44.2 (4) and (5) but there is no such reference in the December reasons to those specific sections nor to CPR 44.2(6) which specifically requires a court to consider whether a party should be made to pay a proportion of the other party's costs and the factors to be taken into account in apportioning costs.
It seems that Ms Jennings provided a breakdown of the costs but the magistrates have not gone through those, there has been no assessment of the costs, there has been no consideration as to which part of the costs apply to which part of the proceedings and there was no consideration by the magistrates as to whether it would be appropriate to order only part of the costs be paid by father and why the entire sum of £5,155.80 pursuant to CPR44.2(6).
In my judgment this was a significant failing on the part of the magistrates. They were not asked to do so by Ms Jennings in her written submissions. I know not whether they were advised to do so by the legal advisor.
In my judgment it is worth noting (what should be obvious) namely that where there is a litigant in person, there is a particular duty on all advocates and indeed on the court, whether it be magistrates or a Judge to ensure at every stage of the proceedings that there is equality of arms and that a litigant in person fully understands the nature of the proceedings and fully understands what the arguments are. I am very concerned that the full background of this case was not fully before the court. Father clearly mentioned the litigation history of the relocation to Cyprus and the fact that mother did not tell father of the proposed move to Kent. Had he been represented, it is likely that the relevance of those matters would have been put far more forcefully within the application for costs. It seems to me that no or insufficient weight was put on that history and on Mother's conduct in making unilateral decisions about K's care arrangements when considering the costs application. Had these matters been properly considered, I find it very difficult to accept that the Justices would have exercised their discretion in the way that they did. In my judgment if Ms. Jennings sought to rely upon that application, it was only fair that the court had understood Mother's conduct, which I do criticise, which caused Father to turn to litigation.
If it is correct that there was no adjournment between Ms. Jennings serving Father with her written submissions and the application for costs, I am concerned by that. Such a failing does not affect my overall decision in this case, but it is a matter of concern to me that a father who is coming to terms with the decision is then expected to deal with such an application, supported by written submissions and case law at short notice.
I am concerned by the written submissions of Ms. Jennings to the Justices and in my judgment she did not assist the court as she could and indeed should have done. In my judgment the learned magistrates misdirected themselves as to the tests to be applied and therefore any balancing act they then undertook was flawed. I am further concerned that these magistrates did not consider whether the costs of £5,155.80 was reasonable and whether only part of the costs should be awarded. There was no assessment of the costs, there was no consideration of how those costs were arrived at and there was no consideration as to whether it would have been just and reasonable to award part of those costs against father rather than the entire amount. Ms Jennings in my submission should have pointed out to the magistrates that they had a duty to consider at what point in the proceedings the costs had accrued and that they could award part costs.
I am concerned that there was no careful analysis of the factors set out under CPR 44.2(4)(5)and (6) as set out above.
I am concerned about the submissions made in respect of the case of HH v BLW and the guidance to have been drawn from this case. I have said the facts are easily distinguished from this case and in my judgment had father been represented, a very different approach would have been taken as to the assistance that could properly have been given by that case.
For all of the above reasons, in my judgment the decision of the magistrates to award costs in the sum of £5,155.80 was wrong. It was wrong because the magistrates were misdirected as to the proper test. It was wrong because the magistrates did not apply or did not place sufficient weight on the relevant factors. It was wrong because the Justices failed to place any or sufficient weight on the reasons why father commenced litigation in May 2013 and that any analysis of the facts would have shown that Mother's conduct at this time fell far short of a reasonable parent acting in partnership with another parent holding parental responsibility.
It was wrong because the magistrates did not consider whether part or the entire amount claimed should be awarded. It was wrong because the finding of the court was that father acted with the best of intentions and the original findings in the facts and reasons of 23rd August do not sit well with the subsequent facts and reasons handed down on 19th December. I would go so far as to say that given the finding that the father had acted with "the best of intentions" the subsequent decision then to award costs was perverse.
For all of those reasons I am going to allow the appeal and I discharge the order for costs against father in the sum of £5,155.80. I know that both parties are extremely distressed by these proceedings, I know that mother has spent a great deal of money on these proceedings and has spent money after the August hearing preparing for the appeal. In my judgment parties should be advised very clearly when they embark on seeking representation in private law proceedings is that it is unusual to recover costs in private law procedings.
As I have noted, Mother told me that in her view father has made her life a living hell for the last six years. I am going to make no comment on where the fault lies as between these two parents save that in my judgment this mother must have known and foreseen litigation by this father when she decided unilaterally to move this child out of the county and move schools with no reference whatsoever to this father who clearly wants to be very involved in K's life.
I sincerely hope that this latest round in litigation between these parents will not disrupt contact between K and his father. Mother may have wholly negative feelings towards father but she must keep them to herself. I was very concerned when mother told me during the appeal that K is concerned that they are going to be homeless because of this appeal. Mother should not be discussing the finances arising out of this litigation with K. He is only 8 years old. Mother explained that K is living in the household and has seen her crying due to the stress of these proceedings. Whilst I feel compassion for her this suggests to me that she is involving K in her distress. She must do her very best to stop that. I sincerely hope that father can accept that K is living with mother with frequent contact to father. However, that does not mean he does not remain a very significant person in K's life.
The one matter that both parents were prepared to agree is they seek a variation of the contact order. Fortnightly K spends the weekend with his father. On the relevant Friday father drives down to Kent and picks K up from school. On a Sunday night mother goes to pick K up from father's. There seems to have been confusion as to whether the pickup point was father's home or the Milton Keynes bus station, suffice to say mother does not want to go to father's home, father does not want to go to the bus station. However both parties were able to agree that in future mother would pick K up from the Budgens store in Grange Farm at 6 o'clock. He was also able to agree that he will be on his own and that his partner and none of his partner's friends would be with him. Therefore by the consent of both of the parties, I am varying the contact order simply to change the pickup point for mother on the relevant Sundays, other than that I am not disturbing, varying or discharging any part of the contact order. Therefore the orders of the court are as follows:
(1)The appeal is allowed and the order for costs against father is discharged.
(2) The contact order is varied, only to the extent that on Sundays mother is to pick K up from [agreed venue] 6 o'clock. Father is to attend with K on his own and without the presence of any other person.
(3) There is no order for costs arising out of the appeal.