The general rule in England and Wales is that costs follow the event. This is where the loser is to pay the costs of the winner.
However, this principle does not apply to family law cases. Under the Family Procedure Rules of 2010 r. 28.1 it should be noted that the court may at any time make such an order as to costs as it thinks just.
The reasoning behind this method is that the courts do not want to discourage people with family law issues going to court because they may be responsible for the other parties costs.
The family law courts will make costs orders against one side only in exceptional circumstances and that would be on the basis that their conduct within the litigation has to have been particularly bad for this to happen, especially in children cases.
The law on costs in child law cases
The leading case remains R v R (Costs: Child Case) (1997) where the father was ordered to pay the mother’s costs on account of the father’s conduct being held to have been unreasonable.
The judge stated the conduct of the parties is the major consideration when deciding whether or not an exceptional order for costs should be made.
It should only be made if the penalised party has been unreasonable in his or her conduct. Moreover the ‘unreasonableness’ must relate to the conduct of the litigation rather than the welfare of the child.
In a more recent case of S v S a father succeeded with an application to relocate with his two teenaged sons to Switzerland, following a damaging family law dispute.
Despite being successful the father was ordered to pay £150,000.00 towards the mothers costs to reflect the fact that the father’s conduct had substantially contributed to the way in which the dispute, which cost the family a staggering £938,000, had to be resolved.
A new case law considering unreasonable conduct in child litigation
Another recent case law considers the costs of unreasonable conduct in family and especially child law matters. This is the case of Re E-R (Child Arrangements Order No.2: Costs).
This case concerned a long running family law dispute over the arrangements for a six year old girl, ‘whose mother died of cancer. The parents had separated in 2011 and the child had remained with her mother. Proceedings began prior to the mother’s death and in January 2015 it was ordered that upon the mother’s death the child should live with her father rather than the mothers family friends with whom she was currently living.
The mothers family friends appealed the order which was granted along with the support of the mother. The Court of Appeal whilst allowing the appeal concluded that the Judge had erred in applying a ‘presumption’ of natural parent care by attaching a greater significance to the biological ties of child to her father.
A re-hearing was ordered by the court in which the court had concluded that the child’s best interests would be served by her remaining in the care of the mothers family friends and as a result a Child Arrangements Order was made that the child live with them. The judge also made contact arrangements for the child and the father.
The father of the child along with his new partner had breached the contact arrangements in place which resulted in the mothers family friends with whom the child was living with to make a further application to the family law court for definition of the time the child was to spend with her father. This application was made in September 2016 and was heard in September 2017. The judge made detailed contact arrangements by varying the initial order made and hoped that these arrangements would be followed.
The mothers family friends following this hearing made an application for costs. They requested that the father and his current partner should pay towards there costs as by failing to comply with the initial arrangements order they were required issue a further application and the fact that the fathers conduct was detrimental to the child. it was also argued that the father and his partner were unable or unwilling to acknowledge their damaging behaviours and/or face up to the consequences of the father’s breaches of the earlier order and that they should therefore be penalised in the costs.
Examples of unreasonable conduct by parties in child law hearings
The judge considered the conduct of the father and some of the important unreasonable conduct issues were identified as:
- Having made a comprehensive range of orders these were largely ignored and breached by the father and his partner
- The father cancelled more than half of his contacts which were ordered.
- The father told a blatant lie to the mothers family friends about his plans for a holiday contact and in breach of the previous order he took child to his home in Suffolk and encouraged the child to lie about where she had been.
- The father has limited respect for the authority of the court, specifically for the Child Arrangements Order, believing that only he should decide when he sees child.
The judge also said “One of the most disturbing issues is that the child is more damaged now than when her mother died” as a result of the unpredictability of contact. The judges view was that the father and his partner have to take significant responsibility for this. The judge therefore made a costs order for the father to contribute £15,000 towards the costs of the proceedings.
It is therefore important to note that although costs orders in family law cases are rare and apply in exceptional circumstances, judges have the power to make such costs orders where a party behaves or conducts litigation in an unreasonable matter.