Can I claim my costs against the other party in private child law proceedings?

It is rare for a court to order that one party pay costs in private child law proceedings e.g. disputes about child arrangements and parental responsibility. This is because:

• It could mean there is less money available to meet the family’s needs
• It can increase tensions between parties which is not in the best interests of the child
• The threat of paying costs may prevent a person from applying to court.

However, the court does have the power to order costs at any time where it thinks it fair and reasonable to do so. In deciding whether to order costs the court will look at all the circumstances including:

• Whether a party has succeeded in part of their case
• The conduct of parties before, during and after proceedings
• Whether it was reasonable for a party to make or contest a particular allegation or issue
• The way in which a party made or defended their case, or a particular allegation or issue

The courts have confirmed that ordering costs in children law proceedings is not about punishing a parent and it will only usually be made if a party has acted unreasonably.

It does not matter if a party has legal aid or not; a costs order may still be made.

In what circumstances might a costs order be made?

The following are case examples of where courts have ordered costs to be paid by one party:

A parent was ordered to pay costs after they unreasonably refused to attend mediation unless the other parent agreed to a shared residence order. The parent ignored recommendations of the CAFCASS reporter and took advantage of the fact that they had more money than the other parent.

A parent was ordered to pay costs in an intractable dispute about contact with a child where the parent made unfounded allegations of sexual abuse against the other parent.

A parent was ordered to pay costs because they applied for a residence order when it was not appropriate and then failed to take part in drug and alcohol tests and failed to attend interviews with a clinical psychologist.

A parent was ordered to pay two-thirds of the other parent’s costs of a fact-finding hearing where the majority of the allegations against him were proven and he should not have “defended” them.

The Judge will however have ultimate discretion in whether or not to make a Costs Order against the opponent.
Sometimes, even if the factors above are established, a Costs Order is not always inevitable. 

In summary, the opponent needs to have behaved very badly, and they need to have the money to pay the prospective Costs order.

The recent amendment in May 2019 to Practice Direction 28A now sees an additional obligation on the parties to assist the Court further the overriding objective, which may assist in obtaining Costs Orders going forward, where one party’s behaviour has been demonstrably unreasonably.

There is now some recent discussion amongst family practitioners about whether Calderbank offers ought to be reintroduced. Those opposed will say that it would have the potential to undermine carefully considered awards, and that the new Practice Direction needs an opportunity to “bed in”.

Those who are in support of reintroducing the more harsh Calderbank approach to costs would say that given only a small number of cases end up at final Hearing, the added pressure of a potential costs sanction may indeed encourage earlier settlement.

However the debate resolves, it is clear that in the legal world there is an increasing appetite for change, and this may well make it more likely that costs will be awarded in financial remedy cases.

Prior to this, the case of Calderbank v Calderbank 1975 set the precedent. In this case, Mrs Calderbank had made a number of reasonable offers marked “without prejudice save as to costs”, which had been turned down by Mr Calderbank and which he failed to “beat” when the case came before the Court for trial. He was ordered to pay Mrs Calderbank’s costs. In 2003, this approach was harshly criticised and after a review Family Procedure Rule 28.3 was introduced . Rule 28.3 includes the passage:-

“The general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party. The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them).”

If you need any assistance please call John on 01207 654365