(Court of Appeal, Richards, Sales LJJ, Bodey J, 24 November 2015)
Costs – Hague Convention proceedings – Proceedings in England and Germany for a return order – Whether the English court had jurisdiction to make an order for costs which included costs incurred in Germany
The mother’s appeal from a costs order in respect of costs incurred in both English and German court proceedings was allowed.
The two children who had lived in England throughout their lives were taken by the German mother to Germany with the father’s consent but the mother failed to return them by the agreed date.
The father sought and was granted a return order from the High Court. He also obtained a reference to the German authorities for the return of the children under the Hague Convention. The German court made orders for their return. The mother failed to comply with the orders and the German court authorised the forcible removal of the children and they were returned to the father’s care.
Over a year later the mother’s application for the children to live with her in Germany was rejected. The mother was ordered to pay the father’s costs of the Hague Convention proceedings. She appealed.
The appeal was allowed and the order for costs was substituted with one awarding costs in respect of the English proceedings. While the judge had jurisdiction to make a costs order in relation to the English proceedings he did not have jurisdiction to award costs in respect of the Hague Convention proceedings in Germany or the father’s travel costs.
The reference in the order to the ‘Hague Convention proceedings’ had conflated the proceedings issued in England with those taken in Germany. The costs of the English proceedings were well within the jurisdiction of the judge given the mother’s flagrant and persistent breach of the court orders, however, the costs of the Hague Convention proceedings in Germany had been a matter exclusively for the German court.
Case No: B4/2014/2605
Neutral Citation Number:  EWCA Civ 1166
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHESTER DISTRICT REGISTRY
HIS HONOUR JUDGE HALBERT
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE RICHARDS
LORD JUSTICE SALES
MR JUSTICE BODEY
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The Appellant mother represented herself, assisted by Mr Saiyed Hanif as a McKenzie Friend
Mr Julian Shaw (instructed by Hillyer McKeown Solicitors) for the Respondent
Hearing dates: 27 October, 2015
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Mr Justice Bodey: 
The Appellant (“M”) appeals by leave of King LJ dated 21st May 2015 against a costs order made against her by HHJ Halbert sitting as a High Court Judge in the Family Court at Chester on 23rd June 2014. The order was that: “M do pay R’s [i.e. the father’s] legal and incidental costs of and occasioned by the Hague Convention proceedings in the High Court of Justice Family Division to be assessed if not agreed and shall pay £12,500 on account by 25.7.14.” The reason for granting permission to appeal was that “…it would appear that the Hague proceedings had been concluded and were not properly before the Court”. At this hearing, the mother has represented herself, assisted by a McKenzie Friend, although she was represented by Counsel on 23rd June 2014. The father (“F”) has been represented by Mr Julian Shaw of Counsel.
The case relates to two children, boys aged 13 and 10 years, who have lived in England all their lives. The parents who were formerly married, have been in litigation over them for many years. M is German and F English. She now lives in Germany. He lives in England with a Child Arrangements Order that the boys live with him, which they do. The mother’s overwhelming desire has however been to have them living with her in Germany. The history is very clearly summarised from 2008 by King LJ in her Judgment dated 24th October 2014 and does not require repetition for the purpose of this Judgment. 
In August 2012, the mother took the boys by agreement to Germany for a holiday. They were due back in this jurisdiction on 4th September 2012, but the mother did not return them. She went missing with them in Germany. The father obtained an order from the High Court in this jurisdiction dated 10th September 2012 for their return to this jurisdiction and also sought and obtained a reference to the German authorities under the Hague Convention procedure for an order for the return of the children, which resulted in orders for their return being made by the German courts as well. The father incurred expenses in travelling to Germany with other family members to collect the children, but the mother ignored and breached all these orders. In the end, the German court had to go to the extent of authorising the forcible removal of the children from her. On 23rd March 2013, this was put in to effect by the German authorities in Germany, through social workers, a bailiff and two police officers. Eventually, the boys were found hidden in a wardrobe. The father had his first direct contact to them the next day, 24th March 2013, seven months after they had gone to Germany for the intended holiday. The mother made allegations of sexual abuse of the boys by the father (later rejected by HHJ Halbert); but the German authorities handed them over to him to bring them back to this country. They have lived with him here ever since, now 2½ years.
The application which brought the case before HHJ Halbert leading to his order of 23rd June 2014 was an application by the mother that the children should live with her in Germany: not the first such application, but no matter. In his careful Judgment dated 3rd June 2014 the Judge gave very clear reasons for rejecting that application. He found in short that if the children were allowed to live with the mother in Germany then “…the relationship with the father will be lost totally and very quickly indeed.” Therefore at the hand down and costs hearing on 23rd June 2014 he dismissed the mother’s applications and directed that the boys live with the father. He made a detailed contact order and an order that neither party could make application to the court for 2 years (expiring June 2016) so as to give the boys some respite from being the subject of litigation. Last he made the costs order referred to above. As I have said, the mother applied for permission to appeal. On 24th October 2014, King LJ went in detail through her various grounds of appeal and gave a Judgment refusing permission on all of them as to substance; but she granted permission as to costs, for the reason already stated.
A reading of the transcript of the discussions about costs on 23rd June 2014 shows that a confusing use of terminology crept in, which in turn led to a confusion of substance. It is unprofitable to examine precisely how this happened but there was talk of two sets of proceedings being before the court, namely “the Hague Convention proceedings” and the mother’s application under the Children Act 1989 for a relocation order. The reference to “the Hague Convention proceedings” conflated two different sets of proceedings:
(1) The proceedings in England taken by the father whilst the mother was wrongfully retaining the children in Germany. Going by the documents in the bundle, that consists of the father’s application dated 6th September 2012 for orders requiring the children to be returned to this jurisdiction forthwith. It was heard by HHJ Halbert on 10th September 2012, when he made findings that the boys were habitually resident in England and had been wrongfully retained in Germany; he ordered their immediate return.
(2) The Hague Convention proceedings properly so called, which had (naturally) taken place in Germany and were not before the English court. 
The costs of (1) were within the jurisdiction of the judge, and it was well within his discretion, given the mother’s flagrant and persistent breach of court orders in two jurisdictions, to order that she pay the father’s costs of and incidental to his application to the English court. The costs of (2) were, however, a matter exclusively for the German court. They had been dealt with by the German court in 2013 by an order that the mother pay the father’s legal costs of those proceedings. However, the father did not make an application in the German proceedings, as he was entitled to do pursuant to Article 26 (see paragraph 13 below) of the Hague Convention, to recover his expenses in travelling to Germany to collect the children and is now out of time in Germany to do so. HHJ Halbert had no jurisdiction to order payment of any of the costs of the German proceedings, nor any jurisdiction to order payment of the father’s expenses in travelling to Germany to bring the children back to the United Kingdom.
Unfortunately, neither the Judge nor counsel drew the requisite distinction between the two sets of proceedings. Indeed, when the Judge expressed concern to the mother’s then Counsel about the costs “of the Hague Convention proceedings”, pointing out that the mother had spent months ‘…defying the courts of two countries’, the mother’s counsel said that there was little she could say in response and that she would find it difficult to resist the father’s counsel’s application in respect of those costs, including in relation to the father’s expenses in travelling to Germany. Following those exchanges, the Judge ordered the mother to pay “the costs of the Hague Convention proceedings in the High Court of Justice Family Division”. I do not know who drafted the order, but it too wrongly and confusingly conflates the two sets of proceedings. It cannot stand as worded.
That the confusion was one of substance is shown by the figures that the Judge took into account when ordering an interim payment on account of costs. On instructions, Mr Shaw told the Judge that the father’s costs claimed came in total to some £19,500, made up of two elements. One element put in the sum of £7,500 was the out of pocket expenses of the father and two relatives in having had to make three trips to Germany to do with trying to get the children back. On each occasion, he and the relatives had gone to Germany for Hague Convention hearings there and to be available to bring the children home to England if the German court so ordered. Mr Shaw argued that it was solely the mother’s behaviour in defying the German (and English) orders which made these trips necessary. The balance of the costs claimed was £12,000 inclusive of VAT in respect of certain ill-defined legal costs incurred ‘during that period’ (seemingly the time that the mother was retaining the boys in Germany). There was no Schedule to validate and explain the figures. It was on that basis that the Judge made the order which he did (above) calculating the payment on account at about two thirds (£12,500) of what he understood to be the full claim (£19,500).
Before us, the mother objects strongly to the way in which all this was done. First, she says that there was no formal application by the father for costs. As a litigant in person, she may well not be aware that there does not need to be a separate paper application. In fact the father’s intention to claim costs had been well flagged-up in written Position Statements and the judge had said in terms at the end of his Judgment that he would be considering the costs position at the hand down hearing (23rd June 2014). So there is nothing in the mother’s point here.
Second, the mother complains that she was ‘ambushed’ by the costs being dealt with on 23rd June 2014 and had had insufficient time to instruct her then Counsel. This ground does not stand up either. On 5th June 2014, she had e-mailed the court at Chester saying that she could not get time off work to attend the hearing listed for 23rd June 2014 and asking for it to be postponed to July. The same day, the court staff, having spoken to the Judge, replied that the 23 June 2014 was the only date which could accommodate all three Counsel (mother’s, father’s and Children’s Guardian’s) and that the mother’s presence was not essential because it was for a formal hand down of the Judgment and ‘to hear submissions about costs’. The mother therefore had ample time properly to instruct her then Counsel in respect of the father’s costs applications, which were flagged up in writing in advance of the hearing.
The mother’s third complaint about the process is as to the way in which the figures claimed for costs on behalf of the father had varied at different times. For example in August 2013 his ‘legal fees in respect of my representation since September 2012’ were put at about £7,000; whereas (as I have said) the figure placed before the Judge on 23 June 2014 for legal fees incurred in England (seemingly just between September 2012 and March 2013) was £12,000, including VAT. The mother complains that she has never had a Schedule (and she did ask for one by e-mail dated 5 June 2014) and says that the figures are being ‘made up as they go along, and this is fraud!’. 
I consider there is substance in the mother’s third complaint, that the father’s costs figures have not been consistent. It goes without saying that, if it is intended to ask on behalf of a party for any quantified order as to costs, then the court needs to be supplied with a Schedule justifying them, upon which the Judge can make a reasoned assessment. This is particularly so as against a litigant in person, although in fact the mother had Counsel on 23rd June 2014, as I have said. Here the process was flawed. The Judge himself referred to the lack of a Schedule and the situation has still not been remedied for this hearing, at which the mother is in person. 
The mother’s fourth and most fundamental complaint is that the Judge had no jurisdiction to make any order in respect of the costs of the Hague Convention proceedings, including in particular the father’s expenses in travelling to Germany to collect the children. I have mentioned this above. The judge did have jurisdiction to make a costs order in respect of the English proceedings (para 5(1) above), but he did not have jurisdiction to award costs in respect of the Hague Convention proceedings before the German court and the father’s travel costs (para 5(2) above). On the face of it, the claim for travel costs in the sum of £7,500 related to the Hague Convention proceedings and was a matter exclusively for the German court. Mr Shaw tried to get round that by submitting that the order of 10th September 2012, ordering the children’s immediate return to this jurisdiction, was or can be taken to have been a Hague Convention order. He described it as the ‘touchstone’ of the Hague Convention proceedings which followed afterwards in Germany, with the German court replicating in effect the English court’s order. On that basis he would say that the English court may use Article 26 of the Convention to order payment of the father’s travel costs, even though such travel costs were not included by the father’s German lawyer in his claim made in or after March 2013 for the costs of the German Hague proceedings. Article 26 in its relevant parts reads: “Upon ordering the return of a child …. the judicial ….. authorities may ….. direct the person who removed or retained the child …. to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant and those of returning the child.” [Emphasis added]. So this, it is said, gives the English court jurisdiction specifically to order the travel costs, the English court having made a return order on 10th September 2012 (even though the German court ordered the return of the children as well).
I cannot for a moment accept that suggestion. The English order dated 10th September 2012 was clearly headed up ‘Specific issue and residence order, S8 Children Act 1989’. It has (with what looks like a typographical error) the same number as the extant Children Act proceedings which had been going on for years in Chester. It is not an order under the Hague Convention. Article 26, as is clear from the context, confers jurisdiction to order travel (etc) costs upon the court which makes a return order under the Convention, not under other free-standing domestic proceedings. Under the scheme of the Convention, it is the court of the requested state (in the present case, Germany) which makes the relevant order for return. Any other interpretation, in cases where the courts of two jurisdictions were working to achieve the return of a child, would result in a potential proliferation of costs applications, possible double-counting and wasted costs. Here the German court could have dealt with the father’s travel costs claim and would have done so if asked. It is not now acceptable to ask this court to act as a long-stop by asserted reliance on its being able to use Article 26. The English court in this case has no jurisdiction under Article 26 to order the payment of the father’s travel costs.
In summary, therefore, I would:
(1) allow the mother’s appeal against the costs order as worded and replace it with an order that she do pay the father’s costs of and incidental to his application for the return of the children dated 6th September 2012, heard on 10th September 2012;
(2) reject the argument that the English Court’s order of 10th September 2012 was a Hague Convention order or in some way a complementary type order, such as to give this court jurisdiction to make an order for the father’s travel (etc) costs under Article 26 of the Convention.
There remains the question of a payment on account of costs. The judge’s order, based as it was on the view that travel costs were recoverable by reference to the Hague Convention cannot stand. I have hesitated as to whether it is appropriate to make a substitute order. The absence of a costs schedule and the changes over time in the figures put forward by the father militate against that course. On the other hand, there can be no doubt that the father would have incurred legal costs in respect of the proceedings before the English court. I have come to the conclusion, on balance, that the justice of the case favours a payment of £3,000 on account of the costs (a more conservative figure than that selected by the judge) rather than requiring the father to go to detailed assessment before he can recover any of the costs to which he is entitled.
As to the costs of this appeal, the parties will have an opportunity to make short written submissions before hand-down of this judgment if they cannot agree an order. Provisionally, and without expressing any concluded view, they might care to consider that each has come away with something and that ‘no order as to costs’ (i.e. costs lying where they fall) might be a sensible outcome. Lord Justice Sales:
I agree.Lord Justice Richards:
I also agree.