B e f o r e :
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|B L W||Respondent|
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THE RESPONDENT did not attend and was not represented.
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MR JUSTICE HOLMAN:
"I am extremely surprised that you have advised your client that he is entitled to make an application to the court for a contact order. As [the child] is almost sixteen I do not think a court would want to be seised of this matter, and would take the view that if [the child] wants to see her father it is up to her to contact him...Kindly inform your client that, if [the child] wishes to contact her father in the future, she will make that decision herself."
"Should you insist upon proceeding, we will treat this as 'litigation conduct' and we will ask the court to make an order for costs against your client, even though we are in Children Act proceedings. We take the view that any application to the court for a child of [the child's] age is not only misplaced, but is a form of harassment as well as an abuse of the court process."
"We will give you one final chance to withdraw the proceedings, failing which we will be asking the court to dismiss the application with costs. The costs schedule will be served upon you prior to the hearing."
On 13th March 2012, the father's solicitors replied by saying:
"Our client has no intention of asking the court to impose an order against [the child's] wishes. His application to the court has been made as a last resort. He has repeatedly offered to attend a mediation service with your client and it is a matter of great regret that your client has refused all such offers. In the circumstances, our client has no alternative but to seek the court's assistance in this matter at the hearing tomorrow."
"…the CAFCASS officer has told us that, for whatever reason, [the child] feels that her father can be controlling. It all amounts to pressure. …in relation to the issue of contact, [the child] has made her views quite well known, that she wishes to think about whether she wishes to contact her father after her GCSEs. In relation to indirect contact, [the father's counsel] asked the CAFCASS officer about whether it was appropriate for the father to write to her and [the officer] said 'Yes', and obviously I would ask that that be done after she completes her GCSEs and if she wants to reply then she can do so."
So it was that, without resistance by or on behalf of the father who, as I understand it, fully - even if sadly - accepted what was reported by the CAFCASS officer, the district judge ordered that there be no order on the father's application as to contact.
"The court has a broad discretion to make such order as it thinks just, and the court has to consider in the circumstances whether it is right to order the father to pay costs, whether by reason of his litigation conduct or simply because it is the right thing to do. That appears to be the test."
It does not seem to me that there is any significant error in that broad description by the district judge of the discretion that he was exercising, or as to the approach. He referred to the fact, as was self-evident, that the father had received legal advice (the content of which was unknown to the district judge, as it remains to me) and that, having decided to make an application for contact, the responsibility for that decision lay upon the father. That also seems to me to be a perfectly correct and appropriate appraisal by the district judge. The father is a gentleman of mature years and patent intelligence and full capacity, and he was, and indeed remains, fixed with responsibility for decisions that he took whether acting with the benefit of legal advice or not.
"Am I sympathetic on a human basis to any parent concerned about their child? Of course the court is, but this is a court and it is costly to bring proceedings. This is not a meeting house. Although [counsel for the father] said that he simply wished to come here to establish the child's wishes and feelings, it is not appropriate to use this court simply to do that through the means of conciliation. I appreciate the establishment of wishes and feelings of the child is part and parcel of the process, but the father should have stood back and asked himself whether really there was any chance at all - whatever she said to the CAFCASS officer - of the court being willing to make any order at all. I agree with [the solicitor for the mother] that this was an entirely misconceived application where the result and conclusion was absolutely foregone. She is nearly sixteen years of age. It would be highly unusual for the court to make an order and the father should have thought about that…"
That passage has been the subject of considerable criticism by Miss Jane Rayson who appears today, as she did before the district judge, on behalf of the father. I have to say that, in my view, the criticism is justified.
"…It also retains the essential feature of the FHDRA as the forum for the parties to be helped to reach agreement as to, and understanding of, the issues that divide them. It recognises that, having reached agreement, parties may need assistance in putting it into effect in a co-operative way."
Paragraph 1.7 reads:
"The revised programme is designed to assist parties to reach safe agreements where possible, to provide a forum in which to find the best way to resolve issues in each individual case and to promote outcomes that are sustainable, that are in the best interests of children and that take account of their perspectives."
So the express purpose of the FHDRA under the revised private law programme is precisely to provide "a forum" as a means "to reach understanding of issues" and for the resolution of them. It thus strikes me as curious that the district judge chose to say:
"…this is a court…this is not a meeting house."
It would frankly require a lexicographer to define the practical difference or distinction between "a meeting house" and "a forum". Then the district judge said:
"…it is not appropriate to use this court simply to [establish the child's wishes and feelings] through the means of conciliation."
I find that also difficult to understand.
"…. the father should have stood back and asked himself whether really there was any chance at all…of the court being willing to make any order at all". "whatever she said to the CAFCASS officer."
I, for my part, would have thought that what she was to say to the CAFCASS officer was likely to be fundamental in this situation.
"Permission to appeal may be given only where -
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard."
It is not suggested in this case that there is some other compelling reason why the appeal should be heard, but Miss Rayson strongly submits that the proposed appeal "would have a real prospect of success". With that, I agree. That is far from saying that, in my view, the proposed appeal would definitely succeed.
"The general approach of appeal courts is one of reluctance to interfere with costs orders…As is well known, orders for costs are very rarely disturbed [per Judge LJ in a case which is then cited]."
So the hurdle on any appeal from a discretionary decision as to costs is undoubtedly a very high one. Although I myself have identified above a number of criticisms of the approach by, and language used by, the district judge, that is far from saying that the proposed appeal would inevitably succeed, although I do frankly say that I cannot conceive that I myself would have made any order as to costs if I had been hearing this matter on 14th March 2012.
"It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice."
Later in the same judgment at para.69, the Court of Appeal was to say, metaphorically:
"The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick."
It might seem harsh to the father, who sits here today, to hear metaphors of a "game" and a candle and its wick, but that was the language used by a Court of Appeal of great distinction in that judgment.
"Proportionality - In exceptional but appropriate cases the appeal court may decline to hear an appeal on the basis that further litigation is disproportionate to the costs and/or issues in the case (Cook v. Plummer…)."
Miss Rayson has kindly produced the full report of Cook v. Plummer  EWCA Civ 484;  2 FLR 989. I mention that there is no reference in the judgment of Lord Justice Thorpe in that case to any test of exceptionality, but in a very different factual context he was to ask at para.13 (at the end of his judgment) a question:
"Is it proportionate that this court should permit her to do so? I have reached the firm conclusion that it is not."
This clearly indicates that, even in family litigation, appellate courts have to take into account broad overall considerations of proportionality.