Family Law

In ‘Costs in private law children proceedings: what now?’, published in the September issue of Family Law, Barrister Nicola Fox from 1 King’s Bench Walk looks at that core of cases which is not resolvable by dispute resolution and for which parties instruct legal representatives to help them. These include cases where there are factual disputes (eg allegations of serious sexual or physical abuse) or where there is little possibility of agreement (eg an application to permanently remove the child to another country). For these life-changing decisions, many parties instruct legal representation, often at great personal financial sacrifice. In such circumstances, what is the current position with respect to costs orders in these proceedings?

Under FPR 2010, r 28.1 the court may at any time make such order as to costs as it thinks just. The power to order costs is governed by CPR 1998 Parts 44, 46, 47 and 45.8 (except 44.2(2), (3), 44.10(2), (3), 46 and 47). The rule that costs follow the event does not apply in family proceedings. There is no mention of costs in the new FPR 12B for the Child Arrangements Programme. The leading case remains R v R (Costs: Child Case) [1997] 2 FLR 95 where the father had been ordered to pay the mother’s costs on account of the father’s conduct being held to have been unreasonable. Other reported cases looked at show costs orders being made following failure to comply with contact orders and in cases where the conduct of the litigation goes beyond the ordinary concerns of parents and putting their case reasonably. Nicola Fox goes on to outline more example cases and then turns to non-party costs’ orders and cases where such orders have been made. Parties can also obtain costs allowances to fund Children Act litigation, (see CF V KM (Financial Provision for Child: Costs of Legal Proceedings ) [2010] EWHC 1754 (Fam), [2011] 1 FLR 208; R v F [2011] 2 FLR 991.

Ms Fox concludes that there are certain categories of cases where a costs order may be appropriate:

• case of no/little merit;
• vexatious action; 
• unreasonable conduct of litigation; 
• proceedings are harmful to the children; 
• free-standing fact finding where determination largely one way.

Taking into account the Family Procedure Rules 2010 and the new Child Arrangements Programme, maybe the following are appropriate too:

• if a party refuses to mediate;
• if a party fails to comply with the rules and practice directions;
• if a party refuses to attend a SPIP
• if a party breaches orders.

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The full version of this article appears in the September 2014 issue of Family Law.

Online subscribers can access the full article here.