It goes without saying that contested court proceedings can be extremely expensive, and proceedings between parents regarding arrangements for their children is no exception to that rule.

So is there any way that you can recover your costs from the other party in a children case?

The general rule in civil cases is that the unsuccessful party should pay the costs of the successful party. That rule, however, does not apply in children cases. The reasons for this were set out by Mr Justice Wilson (as he then was) in the 1994 case Sutton London Borough Council v Davis (No 2), in which he said:

“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 welfare of 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.”

That, however, is not the end of the story.

Conduct of the parties

Notwithstanding that the general rule of “loser pays winner’s costs” does not apply in children cases, the court does have the power to order one party to pay the other’s costs in such cases.

In deciding what order (if any) to make about costs, the court must have regard to all of the circumstances, including:

(a) The conduct of all the parties;

(b) Whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) Any admissible offer to settle made by a party which is drawn to the court’s attention.

The second of these circumstances is not particularly relevant in children cases, as it is not usually appropriate to speak in terms of ‘success or failure’ in a case concerning children, as Wilson J indicated.

In addition, settlement offers are unlikely to have a bearing upon the issue of costs in a children case.

The conduct of the parties, however, could certainly be relevant when considering whether to make a costs order in a children case.

‘Conduct’ includes: conduct before and during the proceedings; whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; and the manner in which a party has pursued or defended its case or particular allegation or issue.

Thus a party who has conducted a children case unreasonably can certainly be at risk of being ordered to pay, or to contribute towards the other party’s costs. This was demonstrated by the recent High Court case The Mother v The Father, which was heard by the President of the Family Division Sir Andrew McFarlane.

An unreasonable appeal

The case concerned a dispute between the parents over arrangements for their two children.

The dispute was decided by the court in June 2021. In the course of that hearing the judge made a number of findings against the mother, including that she had alienated the children against the father. The judge therefore ordered that the children should live with their father.

The mother applied for permission to appeal the findings made by the judge. Permission to appeal was initially refused, on the basis that the application was ‘totally without merit’.

However, following concerns about the competence of an expert who had advised the court in the case, the mother was subsequently granted permission to appeal, upon a very narrow basis concerned with the lawful competence of the expert.

The mother’s appeal was dismissed, and the father applied for costs against the mother.

The President found that the mother’s conduct in bringing and prosecuting the appeal was unreasonable. The appeal entirely turned upon the mother’s attack on the competence of the expert, but she had no basis upon which to mount an argument that the expert was not suitably qualified.

The mother had also been warned by the father’s lawyers that he would seek costs against her if the appeal failed.

However, the President did not consider it fair or proportionate for the mother to pay all of the father’s costs. Her conduct did not go beyond promoting a hopeless case – there was no evidence of some ulterior motive. The position was simply that she did not, and will not, accept the sound findings that the judge had made against her.

The President therefore ordered the mother to pay half of the father’s costs of the appeal, which were subsequently agreed in the sum of £26,176.