Father v Mother: No costs order in children case

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A quick note about a rare example of an application for costs in a children case, which appeared on Bailii yesterday. The case was Father v Mother [2020] EWHC 1930 (Fam), a title that, whilst unusual, does little to distinguish the case from virtually any other private law children case - save, of course, that well-known case Mother v Father.

Whatever, the case originally concerned a father's application for the summary return of two girls aged 14 and 11 to Dubai. However, at lunchtime on the first day of a three day hearing the father conceded that his application for summary return should not be granted, and instead asked for an order for direct contact with the children, including contact outside the jurisdiction.

The mother claimed that the contact application was a matter which could have been dealt with at a far lower emotional and financial cost, and therefore sought an order for costs against the father

As Mrs Justice Lieven DBE, hearing the case, explained:

"The crux of these cases is that the Court can order costs if it considers the parties have engaged in reprehensible or unreasonable conduct and that there may be other circumstances where it is appropriate and just to order costs"

However, this was not one of those cases:

"In my view this is not an appropriate case to depart from the general approach explained in the caselaw that in family proceedings involving children no order for costs is generally made. It is a great pity that the parties did not reach an agreement without coming to court at all and that the Father did not focus his application on contact rather than return at a much earlier stage. There is a lack of realism, as well as what is in the best interests of the children, in very many applications for summary return of children and this is but one example.

"However, the Mother did unlawfully retain the children in England in circumstances where she knew the Father had not agreed. Importantly, she did not agree to international contact even though there was a mechanism in Dubai by which her ability to have the children returned to England could largely be protected. She was adamantly opposed through the hearing to international contact and, in those circumstances, it seems to me inevitable that there would have been a hearing and it would have been largely along the lines of the hearing that took place."

Then comes the telling conclusion:

"If either party had been prepared to act more reasonably in this case and take a more consensual approach, costs and court time could have been saved. I do not think this is an appropriate case to make a costs order."

You can read the full judgment, all 8 paragraphs of it, here. The main judgment is here.