There should be no order for costs in children's proceedings absent unreasonable behaviour in the conduct of the litigation

Lady Justice Gloster
A summary of L (Costs of Children Proceedings) [2014] EWCA Civ 1437, handed down by the Court of Appeal today.

This was an application by the appellant mother for permission to appeal against three paragraphs of an order made in private law children proceedings. Two of those paragraphs related to the transfer to the father of two trust funds for the children, but it was conceded on behalf of the father that the mother's appeal should be allowed in respect of those paragraphs. I will only therefore consider here the mother's appeal against the third paragraph, which ordered her to pay the father's costs of the proceedings, amounting to some £25,000.

Briefly, the history of the matter was as follows. The parties married in 1997 and had two children, a daughter TL who was born in April 2000 and a son, BL, who was born in June 2003. The marriage ran into difficulties in 2007 and in December 2007 the mother and children moved to rented accommodation. After the breakdown of the marriage, there were years of litigation between the parties involving, amongst other things, Children Act applications. Lady Justice Gloster, giving the leading judgment in the Court of Appeal, takes up the story:
"Until February 2013, TL lived with the mother and had made it clear that she did not want any contact with her father. There was thus no contact between TL and the father from 2009 until 2013. Litigation between the mother and the father focused on the son, BL. A previous residence application relating to BL was concluded at a final hearing before DJ Willis on 15 May 2012. By an order of that date he ordered that BL was to reside with the father and to have contact with the mother. Whilst this proposal was supported by the then allocated CAFCASS officer, a Mr B, the decision was apparently contrary to the repeated and recorded wishes of BL, who stated he wanted to live with his mother and sister. In the light of the history of the case, DJ Willis prohibited both parties (pursuant to s91(14) of the Children Act 1989) from applying for an order under s8 in respect of BL without the leave of the court for a period of 5 years."
Following this:
"The contact arrangements as ordered by DJ Willis broke down on a number of occasions when either BL refused to return to the father's care after contact with the mother and TL, or he refused to go to school on occasions when he was due to be collected from school by the father. This prompted the father to seek to make applications on 19 November 2012 to vary the contact order made by DJ Willis and prompted the mother to seek to apply for a residence order in relation to BL. At a hearing on 27 November 2012, DJ Willis gave leave for both parties to make applications in relation to BL and transferred the case to the Bournemouth County Court."
There then followed a significant change of circumstances. Early in 2013 TL, having had various arguments with her mother, recommenced contact with the father, and within a week of doing so, expressed a wish to live with the father. Following this, the Guardian reported, proposing that both children should primarily live with the father.

In the light of this, the mother's solicitors wrote to the father's solicitors proposing that a consent order be drawn up withdrawing her application, granting residence of TL to the father, leaving her contact with the children undefined and vacating the final hearing listed for the 25th of March 2013. The father refused, saying that he wanted the question of contact to be resolved at the final hearing.

That hearing therefore went ahead. However, as she had conceded residence of both children and did not seek any order for contact in the light of her express wish that this should be done on informal basis, the mother did not attend and was not represented.

At the hearing residence orders were made in favour of the father in respect of both children although, significantly, no formal contact order was made. The father sought, and was granted, an order that the mother pay his costs since the order of the 15th of May 2012, on the basis that her conduct of the litigation since then was unreasonable.

The mother appealed, on two grounds: firstly, that she had been given insufficient notice of the father's application for costs and secondly submitting that the judge erred in failing to follow the presumption that there should be no order for costs in children's proceedings absent unreasonable behaviour in the conduct of the litigation justifying such an order.

The mother succeeded on both grounds.

There was no indication in the correspondence that the father would seek costs and there was no evidence before the judge that could have provided him with any confidence that the mother, by then an unrepresented litigant in person, anticipated that the issue of costs was going to be raised contentiously on the 25th of March 2013. At the very least, the judge should have afforded the mother an opportunity to make representations to the court, but he did not.

As to the second ground of appeal Lady Justice Gloster said:
"In my judgment there was no basis in the present case for the judge concluding that the conduct of the mother in the conduct of the litigation since May 2012 was in any way unreasonable or reprehensible. Certainly there was nothing in her conduct that justified an adverse order for costs against her contrary to the normal principles in child care proceedings."
The mother had been granted specific leave by DJ Willis on the 27th of November 2012 to make an application for a residence order in relation to BL - DJ Willis had a detailed knowledge of the parties, the children, the case and the history of the proceedings and yet he considered it appropriate to permit the mother to file an application for residence in relation to the father's application for change in contact. Lady Justice Gloster:
"Although the judge was informed of the order dated 27 November 2012 allowing both parties leave to make their applications, the father's application for costs was argued on the basis that the mother's repeated application for a residence order in relation to BL was an unreasonable application from the start and for that reason she should pay the costs. But that simply was not the case. The judge appears to have given no weight to the fact that the mother's application had been assessed and determined as having sufficient merit to justify leave being granted by DJ Willis. Indeed the mother's cross-application was, at the time it was made in November 2012, clearly in accordance with BL's wishes and feelings..."
"Until February 2013 the evidence clearly suggested that the correct place for BL's residence was a finely balanced issue notwithstanding that the issue had been litigated previously. The true position only really emerged clearly in February 2013 when TL stated that she no longer wished to live with her mother for various reasons. What only then became clear was that it was BL's wish to live with his sister that was the driving force behind his wish to live with either his father or his mother, as the case might be. I therefore accept ... that it was incorrect of [counsel for the father] to suggest ... that the most recent proceedings were "essentially re-litigating for the third time matters which had been resolved [in] two previous proceedings with no substantive change in circumstances." That was not the correct characterisation of the proceedings."
She went on:
" reality, and in a difficult situation where the mother was clearly having problems with both TL and BL, she acted in accordance both with the conclusions of the professionals and the change of views held by her children. I agree she took all reasonable steps to avoid the need for a final hearing."
She concluded:
"In my judgment there is nothing in the mother's conduct of the proceedings that could be characterised as unreasonable or reprehensible. She was faced with extremely difficult problems relating to the residence and schooling of her children; the fact that she may have had inadequacies as a mother in dealing with her children was no reason for visiting the costs of these proceedings on her. When it came to the point, she reacted proportionately and fairly and sought to save costs. The fact that she is not currently having contact with the children but hopes to do so in the future once emotions have settled, is in itself no reason for visiting the costs of these unfortunate proceedings on her. Accordingly I conclude that it was wrong in principle and on the facts for the judge to have made an order for costs against her."
Lord Justice Kitchin and Lady Justice Black gave concurring judgments. Accordingly, the mother was granted permission, her appeal was allowed and the offending paragraph of the order was replaced with no order for costs.