Costs Orders and Childrens’ Cases
Published: 14/06/2022 15:18
Children’s cases in family practice, rarely generate awards for costs. A quarter of a century ago, Hale J (as she then was) explained why the practice of letting each party bear their own costs had developed, in the Court of Appeal decision of R v R (Costs: Child Case)  2 FLR 95 in these terms:
‘The reasons why this practice has developed perhaps fall into three categories. The first is general to all family proceedings and was pointed out by Gojkovic v Gojkovic at 57 and 327 respectively, that an order for costs between the parties will diminish the funds available to meet the needs of the family … The second reason which is given for there being no costs orders in general in children cases, 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 … The third reason is suggested by Wilson J in the case of London Borough of Sutton v Davis Costs (No 2) at 570–571, when he points to the possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future; it is likely to exacerbate rather than to calm down the existing tensions; and this will not be in the interests of the child.’
But in an appropriate case the court has ample powers to make costs orders against parents, or others who act in a way that can be described as unreasonable, or even reprehensible.
Section 51 of the Senior Courts Act 1981 gives the court discretion over the costs of the proceedings and rule 28.1 of the Family Procedure Rules provides that the court may make such an order as it thinks just. Case law establishes that unreasonableness opens the door to the making of a costs order in a children’s case, though the court will exercise a broad discretion.
In the case of R N (A Child) v A & Others  1 FLR 454 Munby J as he then was 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 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 … Careful attention must be paid to all the circumstances of the case and to the factors which, on the authorities I have referred to, indicate that normally it is inappropriate to make such an order - factors which do not simply disappear or cease to have weight merely because the litigation has been conducted unreasonably.’
The recent decision of Arbuthnot J in the case of C v S  EWHC 800 (Fam) illustrates some of these considerations in practice. The case concerned an appeal against the decision of HHJ Sapnara, who refused a father’s application for a costs order against his former wife and her new husband, at the conclusion of a children’s case.
In judgment after a child arrangement hearing, the judge at first instance had concluded not only that the father had been falsely accused by the mother of sexual and physical abuse, but the mother had manipulated professionals and others, including the children who she had sought to recruit in her efforts to create a narrative of sexual abuse. The mother was described as untruthful, dishonest, and manipulative. Consequent to a subsequent welfare hearing, the children were removed from the mother’s care and placed with the father.
Surprisingly despite these findings, the judge at first instance concluded that the mother’s conduct was not exceptional, reprehensible, or unreasonable. The father by the conclusion of the proceedings had spent £367,000 in legal fees in total, was in debt to his lawyers and his family, could no longer afford his home and had to rent, could not afford to run a car. His ability to work was impeded by having to care for the children.
On appeal, the High Court judge noted the high hurdle that any litigant seeking to challenge a decision at first instance must face. This hurdle is described in a series of cases which describe and define the principles upon which an appellate court will interfere, in an area where there is an extremely broad discretion open to the decision maker at first instance.
In G v G  1 WLR 647 Lord Fraser of Tullybelton cited an earlier judgment of Asquith LJ:
‘It is, of course not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which the reasonable disagreement is possible, and is in fact, plainly wrong, that an appellate body is entitled to interfere.’
In the specific context of appeals against decisions on costs, Stuart Smith LJ stated in the case of Roache v News Group Newspapers Limited and Others  EMLR 161:
‘This being an appeal on costs with the leave of the judge, the ordinary rules as to review of the judge’s discretion apply. The court must not be tempted to interfere with the judge’s order merely because we would have exercised the discretion differently from the way in which the judge did. Before the court can interfere, it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.’
This approach was reinforced in SCT Finance Ltd v Bolton  3 All ER 434 in which Wilson J (as he then was) put it thus:
‘This is an appeal brought with leave of the single Lord Justice from the county court in relation to costs. As such it is overcast from start to finish, by the heavy burden faced by any appellant in establishing that the judge’s decision falls outside the discretion in relation to costs conferred upon him under CPR 44.3(1). For reasons of general policy, namely that it is undesirable for further costs to be incurred in arguing about costs, this court discourages such appeals by interpreting such discretion very widely.’
Notwithstanding these strict criteria, the appellate judge found that the appeal was well founded. A key part of the judge at first instance’s reasoning was subject to sustained criticism in the appellate judgment which laconically noted the gap between the findings at first instance and the conclusions that the judge had drawn:
‘160. I adopt the findings of HH Judge Sapnara that the Respondent made up her evidence, exaggerated or embellished incidents and made the unsubstantiated allegations of physical and sexual abuse. Her behaviour led to a four-day hearing becoming a ten-day hearing.
161. Based on those findings, I would have found the Respondent to have behaved reprehensibly and that her approach to this part of the litigation was unreasonable. This would have opened the door to an award of costs for the fact-finding hearing.
162. As is clear from the principles set out above, it is not my view of the Respondent’s behaviour that matters in an appeal, it is whether the Judge, when declining to find that the Respondent had acted reprehensibly or unreasonably, was acting within the wide or generous ambit of her discretion.’
The High Court judge then decided that there were four criticisms of the first instance decision: first the failure to grapple with the reasons why the mother had acted as she did:
‘164. The long and short of the expert’s evidence was that the Respondent was anxious and was affected by a dysfunctional childhood. To take up the approach of HH Judge Sapnara (which I will criticise below), many of the parties before the family courts have issues of that sort. The Judge recognised she was intelligent and articulate and in raising the complaints she did, the Respondent knew what she was doing (a finding also made by HH Judge Brasse). I did not consider it was correct for the Judge to suggest that the mother’s psychological or emotional presentation excused her conduct during the fact-finding.’
Secondly, a mischaracterisation of the mother acting as a litigant in person:
‘165. The second criticism I have of the Judge’s decision is that she said she took into account the fact that the Respondent had been acting as a litigant in person at all material times so lacked the benefit of advice which might have modified her approach. This was not in fact the case.’
Thirdly the surprising conclusion that the mother’s conduct was not unusual in the context of proceedings of this kind: in effect a finding that many people lie in court, so it is not conduct which is outside “the norm.”
‘167. The third criticism I have is of the Judge’s comment that the Respondent’s conduct was not unusual in the context of proceedings of this kind. I am not convinced that was an appropriate thing to say. In any event, the Respondent’s behaviour as set out in the judgments is unusual even in the context of factfinding proceedings. Unsubstantiated allegations particularly of the sexual abuse of children are fairly unusual. The Respondent’s manipulation of professionals and the way in her evidence she “made it up as she went along” were unusual too.’
Fourthly, the father’s penury, flowed from the mother’s behaviour, which had led to large sums of legal costs being incurred by the father.
This evaluation of the case then grounded the High Court judge, having set aside the first instance judgment, making her own decision, and deciding to award costs against the mother:
‘183. The amount of costs I have in mind is most probably less than the costs to the Appellant of the mother’s behaviour during the fact-finding but is not so high that it would interfere with the mother continuing with therapy. I make a summary assessment and order that the Respondent shall pay the Appellant the sum of £37,000. I consider this is a just and reasonable amount.’
This judgment is a salutary reminder that despite the heat and stress of a contested children’s case, parties do not have licence to make up evidence or lie to the court, save at their peril in relation to costs. As far as unfounded allegations are made unreasonably, then a costs order can be made and often should be made. Nor should it be necessary to link the making of the costs order to the causation of costs: it is a mark of disapproval due to conduct, and it should not matter that, for example, a party would have been legally represented anyway.
It is also a reminder of how the norms of litigation behaviour in childrens’ cases are not peculiar or unique to the family court: practitioners who represent parents day in day out, may become enured to all sorts of allegations, well founded or fabricated, but allegations of sexual and physical abuse are perhaps the most serious that can be made against an opposing parent.
The fact such allegations are encountered too frequently for comfort, does not detract from their exceptionality, or the need to condemn parties in costs who otherwise may indulge in all sorts of litigation behaviour if there is no sanction in costs to constrain them.
As the appeal court observed:
‘155. I have picked out the allegations of sexual and physical abuse as they must be particularly upsetting for a parent to have to deal with. It is easy for those involved in the courts to become case hardened and perhaps not to give sufficient weight to the effect of in particular allegations of sexual abuse on a party to a case.’
To conclude, when in any such case a judge finds that one party has deliberately lied to the court, an application for a costs order should always be considered, as the doorway to a costs award will be opened by such conduct.
My blog on costs and litigation funding matters can be found at www.costsbarrister.co.uk