Jersey Unreported Judgments

[2011]JRC114A

Royal Court

(Family)

14 June 2011

Before     :

J. M. O'Sullivan, Registrar, sitting alone.

 

IN THE MATTER OF CC

Reasons in respect of a cost application in children proceedings.

Advocate R. E. Colley for the Applicant.

Advocate B. J. Corbett for the Respondent.

judgment

the deputy registrar:

1.        On the 18th July 2010 CC was born in England.  The respondent father was named on the birth certificate and therefore under English Law has parental responsibility.  The mother's application for residence and in respect of contact was filed at Court on the 10^th December, 2010.  An order by consent was made on the 18th May, 2011 that CC reside with his mother and the matter of costs was adjourned until the 14th June, 2011.  It was noted that the father can pursue an application for contact if he wishes to do so.

2.        I have been asked to decide the question of costs.  In these proceedings the mother has been represented by Advocate Colley, but the father had been a litigant in person but now has Advocate Corbett representing him in the costs application.  Both advocates provided a bundle of written submissions and authorities and included in the mother's bundle were some e-mails from December 2010 not previously shown to this Court.

Background

3.        The mother stayed in the father's flat for the first two nights of CC's life but she was then asked to move.  She has a flat in London which was at the time, and continues to be tenanted.  She moved to Northern Ireland with CC for five months to stay with relatives, then she spent time in Durham and she came to Jersey on the 5^th December, 2010.  The father maintains that the mother came to Jersey with CC without his consent. 

4.        I was referred by the mother's advocate to the e-mail correspondence that took place in December 2010 regarding this.  The mother's lawyers submitted that the e-mail correspondence concerned her so much that she felt she had no option but to apply for a residence order.  On the 4^th December, the day before she came to Jersey, the mother sent an email timed at 23:41 to the father inter alia stating:-

"you ,your mother and D (CC's half -brother) are very welcome to visit Ivan here in central Durham."

She went on to write in the same e-mail:-

"my mother is ill and I need to see her and my family in Jersey so I am going there now.  I'll be back in Durham when your mother arrives in the UK I'm on the usual number".

The father's mother was going to visit him from Russia over the Christmas period.  The father sent an e-mail on the 5th December asking for regular contact between him, CC and D.  He said that if she cannot or refused to answer satisfactorily he would go to court.  He asked her to ring or arrange a mediator, which she had suggested.

5.        On the 13^th December, having already filed her residence and contact application, the mother e-mailed the father:-

"Visiting London isn't practical before Christmas. We could think about it after Christmas if the weather is ok ...."

She went on to write:-

"I have been advised that getting a Residence Order for CC would be a good way to make the situation clearer and we can agree contact after that.  For the next two to three months I am planning to be here in Jersey - I hope you will visit CC here."

6.        The father replied on the 14th December that he and his mother would not be able to come to Jersey.  He asked her to come on the 27th-28th December and that he could buy her the ticket.  He asked for an address for D's present to be sent to and added:-

"I'll hold on the court action if you come seeing this as a sign of good will and co-operation but if matters do come to court I'll be pressing for 50% custody and pressing for your immediate return to London."

7.        This was the e-mail that Advocate Colley submitted was of particular concern, but by then the mother had already filed her application.  The mother's lawyers submitted that he knew of her visit to Jersey, and it is correct she e-mailed him late on the 4th December before she came on the 5th December, although at that stage said she would be back in England before his mother arrived, and on the 13th December she would stay for 2-3 months.  The father's lawyers submitted that even if he knew that mother and CC were in Jersey this did not mean he acquiesced in them being in Jersey. 

The Court Proceedings

8.        As of a result of the application made by the mother, a Preliminary Directions Hearing ("PDH") took place on the 23^rd December, 2010, with the father on the telephone.  He was urged to get legal advice and a date was set for a Case Review Hearing ("CRH") in February as he said he was unable to attend court in January.  It had been arranged with the Jersey Family Court Advisory Service ("JFCAS") Officer that he would see her immediately prior to the CRH on the 21^st February, 2011, but unfortunately fog meant that the plane was eventually cancelled so he was unable to come to Jersey. 

9.        A further date was set for the CRH on the 21^st March, 2011 but the father said he was unable to attend in Jersey and he appeared by video-link.  A welfare report was ordered with regard to residence and contact.  The JFCAS officer said at the hearing on the 21st March that he would need to first come to Jersey and after that she would do a visit to London.  It was noted that the father was offered contact supervised by the mother in Jersey and through Skype but he declined this.  A provisional date was set for the 6^th June with the father to confirm that he could attend on that date but he informed the Court that he was unable to do so and due to the Court diary an earlier date was set on the 18^th May all parties to attend.  Both parties filed statements on a voluntary basis and the father made an allegation that the child was not safe in Jersey with the mother's family and made an allegation that she had looked after the family horse and "used it for her own sexual gratification".

10.      The father's lawyers submitted that he had misunderstood that he initially had to see the JFCAS officer in Jersey and said that he did not receive a letter from JFCAS dated the 29th March asking for a meeting in Jersey.  On the 5th May JFCAS confirmed with him there would be no assessment in London, and their contact with him was therefore by telephone and e-mail.  The JFCAS Officer filed her report with the Court on the 11^th May, recommending a residence order be made in favour of the mother, and wrote "With regard to contact, I am aware that this is part of A's application and not an application made by B.  As previously stated, he has declined to commit to the assessment."  A copy of this was sent by post to him.

11.      Prior to receiving the JFCAS report on the 7th May he informed the Court that he would not be able to attend the hearing.  However, on the 17^th May the father informed the Court that he would not oppose a residence order but wanted 60 days a year contact in London.  In her report the JFCAS officer commented "I am however able to comment that in my view the very fact that B will not commit to even one appointment (especially if it could have coincided with a contact visit in Jersey) highlighted his lack of commitment to his son and that he is prioritising his own needs above the needs of the child."  At the hearing which the father did not attend a residence order was made by consent and it was noted that the father can pursue an application for contact if he wishes to do so.  The costs application was adjourned to the hearing today. 

12.      In terms of the Court procedure therefore there was a Preliminary Directions Hearing, a Case Review Hearing which could not take place owing to the plane being delayed and eventually cancelled, a Case Review Hearing on the 21^st March and a further Case Review Hearing when an order was made by consent as to residence.

The Law

13.      Advocate Corbett referred me to the case of Keller v Keller and Legal Aid Board [1995] 1 FLR 259, 267-268 in which it was stated that:-

"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.  Examples would be likely to include cases where one of the parties had been guilty of unreasonable conduct...."

14.      Both lawyers refer me to the case of In the matter of B [2011] JRC 045.  In his judgment Commissioner Clyde-Smith referred to the English Court of Appeal decision of R v R (Cost: Child Case) (1997) 2 FLR 95.  In the head note to that case:-

"(2)     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 conduct.  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."

In that case the Court suggested that one of the reasons why there should be no costs orders in general in children cases that:-

"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."

15.      Commissioner Clyde-Smith considered the case of Re T (Order for costs) [2005] 2 FLR 681.  In that case following a period of acrimony the judge found, following a fact finding hearing, that the mother's worries about contact were unfounded, that the father had an excellent relationship with his child and the judge ordered staying contact.  The mother then made allegations of sexual abuse by the father and suspended contact.  There was a further fact finding hearing and a child psychologist wholly supported continuing contact.  A residence order was made in the father's favour.  The father was awarded cost, having argued that the mother had produced false evidence.  The mother appealed the cost order and the Court of Appeal held that she had had no proper grounds for failing to implement contact and she had acted unreasonably, which had prolonged the litigation. 

16.      The Commissioner said that in the case before him, although no direct allegations of sexual abuse or grooming had been made by the mother, the JFCAS officer had advised the Court that "the mother had in her view always feared either that the father had or will abuse the children.  ...any little matter would be used as evidence to support her concerns."  He said that in light of this background and the "opaque" nature of her evidence, it was unreasonable for her to stop overnight staying contact for child 3 without raising her concerns to the father , allowing him to respond and for the JFCAS officer to investigate  Further he held it was unreasonable:-

"for her to prolong the litigation after she had received the clear    and balance advice of the Court Welfare Officer that overnight staying contact should be resumed."

17.      Both advocates referred to the case In Re N (A Child) v A and Others [2010] 1 FLR 454.  There had been acrimonious and confrontational residence and contact proceedings.  Munby J found that the father's approach was unreasonable, although not in every respect and also "given the sheer number and reach of his applications - no fewer than 30 applications arsing out of what was after all a consent order - unreasonable in its scale and effect."

The mother was seeking a costs order in respect of residence and contact issues but Munby J made no costs order and stated:-

"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."

18.      Has the respondent litigated in an unreasonable fashion and even if he has done so, should a costs order be made?

The Stance on Costs

19.      Advocate Colley submitted that he was unreasonable in that he opposed the residence application but never appeared in Jersey, he did not meet with the JFCAS officer, and the mother never knew whether he would attend court, and he e-mailed to say he would not be attending on the 18th May.  He, she submitted, had said that at various stages he would issue proceedings in England but did not do so and he did not issue his own application for contact.  He did not take up the offer of supervised contact and by Skype and was not prepared to build up a bond with his child.  He filed a statement making allegations about the mother's behaviour with a horse, which was untrue, but which he must have known would upset the mother.  The case, Advocate Colley submitted, could have concluded months ago.  As a result costs built up and she argued that he should pay the mother's costs.  She said that his real interest was in contesting costs rather than seriously seeing his son.  As a result of the litigation, the mother has incurred costs of about £5,000, and she will have to meet the costs as she was refused legal aid because of her property in London.  She submitted that there is no evidence that the cost order would impact on the relationship between the mother and father and thus on the child.  Nor given the mother has always been willing to allow contact would such an order provide vindication to a negative view of the father.

20.      Advocate Corbett submitted that the father had thought he could not agree to the making of a residence order in another jurisdiction because CC would not have sufficient opportunities to have contact with him and his step-brother, and because he had not acquiesced in CC's removal.  She said that while he had indicated that he may make an application in England he never did so, which meant that the case proceeded only on the basis of the mother's applications.  I accept Advocate Corbett's submission that as the matter of contact was before the court in any case because of the mother's application, a formal application by him for contact did not have to be made.  However, he has not seen the JFCAS Officer in Jersey despite the request to do so, nor has he taken up the offer of supervised contact in Jersey or the offer to use Skype.  It was submitted by Advocate Colley there was a misunderstanding and he thought the JFCAS officer was coming to London to see him, whereas she would have not done so until she had seen him in Jersey.  I accept that whether or not he came over to Jersey he did have the opportunity to speak with the JFCAS Officer by phone and communicate by email and as a result she was able to submit her report to the Court on time.  He did make an allegation in a statement that was not ordered to be filed regarding the mother's sexual relationship with her horse but this matter was not pursued and he accepted a residence order be made in her favour.  I do accept that the mother found the proceedings difficult in that she was not sure if the father would attend hearings, but the court organised a PDH by telephone, the father did try to come over to Jersey for the first CRH and the fact that he did not do so was not his fault due to fog.  A further CRH was arranged by video link, for which he paid.  The father did state shortly before the hearing on the 18th May that he would not attend the hearing but then informed the court that he would not oppose the mother's application for residence, having received the welfare report by post, which had been sent to him on the 11th May.  The father did not prolong the litigation in respect of a residence order once he had seen the JFCAS report.  Given that he did not attend Court to argue about contact, it was noted that if he wished to pursue the matter further, he could do so.

The Decision

21.      I have looked at the circumstances of this matter and have considered the authorities and emails provided by the advocates.  The general practice is not to make costs orders in children cases, and to do so only in exceptional cases.  One of the reasons why an order may be made is because of the unreasonable conduct of litigation, but even then this does not necessitate making a costs order. This has not been a long, protracted and acrimonious case involving several contested hearings, and indeed there has been no contested final hearing.  I accept that certain aspects of the father's behaviour may have been unreasonable but I do not  consider that overall his litigation conduct was unreasonable, and even were it to have been so, this is not a case were a costs order should be made.

Authorities

Keller v Keller and Legal Aid Board [1995] 1 FLR 259.

In the matter of B [2011] JRC 045.

R v R (Cost: Child Case) [1997] 2 FLR 95.

Re T (Order for costs) [2005] 2 FLR 681.

In Re N (A Child) v A and Others [2010] 1 FLR 454.