The High Court offered a timely reminder that unreasonable conduct during child arrangement proceedings can lead to a significant departure from the usual "no order as to costs" principle.
Background:
The parties were in a relationship from late 2016. In early 2019, while pregnant, M discovered F was in a relationship with another woman who had already had a child with him and was about to give birth to their second. Their relationship consequently ended.
In September 2022, the father applied for child arrangements and parental responsibility orders with regard to the parties’ child, C. In January 2023, a consent order was made appointing an independent social worker to advise on and assist with C's introduction to F and his half-siblings. The father had some contact with C in 2023, with his last contact in April 2024. On 29 August 2024, the father applied to withdraw his applications, which were granted by the Court on 16 September 2024, but there was insufficient time to deal with M’s application for costs as listed for February 2025.
The mother argued that the father's conduct before and during the proceedings, including his motivations for issuing and subsequently withdrawing the applications, amounted to unreasonable conduct justifying a costs order against him. The mother’s costs totalled £514,115.97. The father contended that his conduct was unreasonable.
Decision:
The High Court granted an order in favour of M ordering F to pay 50% of 75% of her costs (amounting to £192,793.50) due to the exceptional nature of the case and the impact of F’s actions on M. The Court noted that F’s conduct towards M was dishonest and reprehensible, amounting to domestic abuse. However, the applicable costs rules, and in particular Civil Procedure Rule (CPR) r44.2(4), require consideration of F's conduct within the litigation being "reprehensible or unreasonable."
Despite the limited findings of fact, the Judge was satisfied that a costs order against F was appropriate. The father's conduct before and during the proceedings, as taken into consideration, included the timing of his applications, which occurred more than three years after C's birth, his attempts to seek confidentiality agreements as a precondition for financial offers, his late withdrawal of the applications, and his non-attendance at hearings. Nicholas Allen KC noted that “F's applications were not motivated by a genuine desire to build and foster a relationship with C, but were rather motivated by a desire to silence M and prevent her from speaking out.” A without prejudice letter from F's solicitors made it clear that his financial offer regarding C was contingent on M signing a confidentiality agreement, terms for which were provided months prior. The Judge considered this "out of the norm" and indicative of an unreasonable motivation beyond C's welfare. All those aspects amounted to unreasonable behaviour, causing M to incur significant costs and justifying a departure from the normal practice of not awarding costs in private law children cases.
The Court concluded that the usual practice of no order for costs in children's cases does not apply here, after considering Hale J's categories in R v R (Costs: Child Case): F's wealth means a costs order will not diminish funds for the child. It will not deter F from future warranted applications (subject to the Section 91(14) order), the parties' relationship is so poor that a costs order is unlikely to worsen tensions or impact the parental relationship and, therefore, C's welfare and a costs order will reimburse M, potentially benefiting C as her primary carer.
The Judge emphasised that the decision is based on the "unreasonableness" of F's conduct of the litigation, not a moral judgement on his wider behaviour. Applying Civil Procedure Rule (CPR) r44.4, the Court considers the conduct of the parties, efforts to resolve the dispute, the importance of the matter, as well as other relevant factors. Ultimately, those factors reduced the proportion of M's costs that F should pay.
Implications:
While the general principle of "no order as to costs" in private children law remains, this case reinforces that a departure from this principle is warranted where a party's conduct of the litigation is deemed "reprehensible or unreasonable". This includes pre-action conduct and behaviour during the proceedings.
The Court was willing to consider a range of behaviours as unreasonable, extending beyond just fabricated allegations of abuse, such as late withdrawal of application or preconditions on settlement offers. The lack of genuine motivation related to the child’s welfare and the use of legal proceedings with ulterior motives weigh heavily in this case.
