Summary of Recent Case Law (Private Family Law: Children) – April to September 2019


Timokhina v Timokhin [2019] EWCA Civ 1284

Lord Justice Underhill, Lady Justice King and Lord Justice Moylan

Judgment:      18th July 2019

These proceedings concerned the parties’ two children aged 15 and 8. The parents were Russian, who moved to London in 2004. Following the breakdown of the marriage, bitter court proceedings ensued in relation to the arrangements for the children. The father applied for permission to remove the children permanently to Russia to live with him. During the course of the proceedings, the mother travelled to Russia where she was arrested and remanded in custody after attempting to bribe a police officer to instigate criminal charges against the father in order to further her own claim on the children.

The matter was listed for final hearing in July 2018. The mother remained in custody at the date of the final hearing and the Russian authorities did not permit her to attend by video link. Her application to adjourn was refused due to the ‘pressing welfare needs of the children.’ The district judge granted the father’s application for permission to remove the children to live with him in Russia. The order was silent as to costs. The mother sought permission to appeal and a stay of the order. The application for a stay was refused and the application for permission to appeal was adjourned to a date in October.

Meanwhile in September, the mother pleaded guilty to the charges in Russia and she was sentenced to four years imprisonment. The mother indicated an intention to appeal against sentence. In the September, the father wrote to the mother inviting her to withdraw her appeal and asking for confirmation by 11th September 2019, that this had been done. This letter put the mother on notice as to costs. Despite a chase up letter, there was no reply.
On 17th September, the mother wrote to the father seeking an adjournment of the permission to appeal application until after the appeal against sentence hearing in Russia. On 18th September, the father’s solicitors refused the request and said that they would be seeking their costs in full, on an indemnity basis, to include the costs of her application for an appeal and stay and their costs in the substantive children act proceedings in July.
Later the same day, the mother agreed to withdraw her appeal on the basis of no order as to costs. On 19th September, the father’s solicitors wrote noting their disagreement with the ‘no order as to costs’ aspect of the mother’s position. The mother subsequently agreed to pay the father’s costs on a standard basis but did not agree to pay the father’s costs on an indemnity basis.

At the court hearing in October, the mother was represented by junior counsel, with a brief fee of £1,500 for the hearing. The father was represented by leading and junior counsel, with respective brief fees of £20,000 and £10,000.  The only issue was the basis upon which costs should be awarded. The circuit judge determined that the proper basis for costs was on an indemnity basis. The judge carried out a summary assessment of costs.

The mother appealed the costs order on the following grounds:

(1) The judge was wrong to award the costs of the hearing in July, when the order was silent as to costs and the general rule is that no party is entitled to costs;
(2) The judge was wrong in assessing costs on an indemnity basis;
(3) The judge was in error in conducting a summary assessment of costs without the necessary information in order to conduct such an assessment; and
(4) The judge was wrong in awarding the father the entirety of his costs and in doing so failed appropriately to weigh whether the costs were proportionate or reasonable.

Held: Lady Justice King: The appeal was refused save as to the quantum of costs.

The CA considered the various provisions governing costs in family proceedings namely: FPR Part 28; CPR Part 44.2(2); CPR 44.2(3); CPR 44.10. It was within the discretion of the court to award costs in respect of the court hearing in July. Three Rivers District Council v Bank of England [2006] EWHC 816 sets out the principles that should guide the court’s determination as to whether to award costs on an indemnity basis. The judge’s conclusion that costs should be on the indemnity basis was plainly within the ambit of the judge’s discretion. The complaint that summary assessment should not have been conducted, was dismissed on the basis that the judge was entitled in the exercise of his discretion to conduct such assessment. Lady Justice King referred to CPR 44.9(2)(b) and Lemmens v Brouwers [2018]EWCA2963.

As to quantum, the test is ‘reasonableness’ not ‘proportionality’. The appeal was granted to the extent that the father was disallowed leading counsel’s fees and half of junior counsel’s fees in respect of the court hearing in October.

RP (Appeal costs) [2019] EWCA Civ 680

Lady Justice King, Lord Justice Baker and Mr. Justice Moor

Judgment: 16th April 2018

In January 2019, a foster carer successfully appealed a care order, which had had the effect of removing the child from the foster carer with whom she had been living for 14 months. At the appeal hearing, the court found that the conduct of both the local authority and the children’s guardian fell short of the standard expected in care proceedings and criticisms were made of their work in the case.

Following the successful appeal, the foster carer sought to recover her costs from the local authority and from CAFCASS

Held: The application for costs was refused. The court confirmed the approach to be taken as set out in two Supreme Court cases: Re T [2012] UKSC 36, and subsequently Re S [2015] UKSC 20. The general practice in proceedings relating to children is to make no order for costs save for in exceptional circumstances. The principal reason is that there are no adult winners or losers as the welfare of the child is the court’s paramount concern and thus the child should be the winner.  That said, there are cases where the conduct of a party has been reprehensible, or their conduct has fallen below what is reasonable as identified in Sutton London Borough Council v Davis (No 2) [1994] 2 FLR 569 and costs orders are made.

Whilst the conduct of both the local authority and children’s guardian was not good enough, it did not fall within the category of behaviour identified in the Sutton case and therefore the court made no order for costs.


G (Children: Intractable Dispute) [2019 ] EWCA Civ 548

LJJs Longmore, Jackson and Coulson

Judgment:      3rd April 2019

The father appealed against the decision of the county court judge at first instance, dated April 2018. The proceedings concerned two girls who were 11 and 8 by the date of the appeal.

In 2015, the father successfully appealed findings of fact that had been made against him [P-G (Children) [2015] EWCA Civ 1025]. Thereafter, there was almost continuous litigation between the parents. Following the successful appeal, the children were ambivalent about seeing their father or expressed a wish not to see him. Some contact had taken place successfully, but other contact had not been successful, and the girls had been distressed. In January 2017, the judge found that the mother had not been giving the girls the emotional permission required for them to build a relationship with the father. He also found that she was not “promoting and encouraging contact with the required drive or determination”. By the time of the final hearing at first instance, no contact was taking place between the father and the children.

In April 2018, the judge at first instance heard evidence and made findings against the father: -The Father did not trust the professionals involved in the case. In the 2015 proceedings, the author of the Section 7 report was found to have been biased, knowingly included untrue information and she had accepted the truth of the mother’s allegations before the fact-finding process had taken place. However, the Father’s subsequent mistrust of professionals extended to each guardian or case worker, to the psychologist assessing the family and to the judge himself;

-The Father’s relationship with the NYAS case worker had broken down to the extent that HMCTS acted as a middleman, for the transfer of documents;

-The Father had lost sight of the children’s welfare. For example even when the children had asked to see him, there were occasions when he refused to take up supervised contact because he felt it was unnatural,.

The judge made an order for very limited indirect contact only. The judge also made a section 91(14) order against the father. The judge in his final order made it clear that the court hoped that the father would follow the expert’s recommendation and seek therapeutic intervention such that his relationship with the children might eventually be re-established.

The father appealed.

Held: The Court of Appeal dismissed the Father’s appeal. The judge who heard all of the proceedings from 2015, had diligently tried to revive the father’s relationship with his children but this had been forestalled by the mother’s earlier lack of support and by the father’s increasingly extreme attitude. The judge had found that:

(a) the children would suffer emotional harm if they were placed with the father or required to have direct contact with him against their wishes; and

(b) the father had completely lost sight of the children’s welfare

These conclusions were determinative of the issue. They were securely based upon professional advice and upon the judge’s own very extensive knowledge of the family.  The findings were not shown by the father to have been wrong, nor was there any serious procedural irregularity.


London Borough of Wandsworth v Lennard (Application for Committal)

[2019] EWHC 1552 (Fam)

MacDonald J

Judgment:      14th June 2019

These were committal proceedings arising from public law proceedings. However, the principles are equally applicable to committal applications in private law proceedings.

The alleged contemnor was the father of two children in care proceedings. In July 2018 the court made an order prohibiting the father from:

(a) Using offensive, foul, threatening words or behaviour towards AB or GO as employees of the applicant local authority working in the Children Looked After Team No. 2.

(b) Sending offensive, foul or threatening communications, emails or messages to AB or GO as employees of the application local authority working in the Children Looked After Team No. 2 by texting or using the internet or social media to communicate.

The LA applied for an order committing the father to prison for contempt arising out of an alleged breach of the above order.

MacDonald J emphasized that the process of committal for contempt is highly technical. The judge summarized the strict procedural requirements that must be complied with.

In February 2019, the father attended Wandsworth Town Hall. He barricaded two social workers in a room. He was verbally abusive, and he made threats of harm regarding GO who was not present at the time. In the contempt proceedings, the father accepted that he had used foul language towards the two social workers, detained them in a room for 10 minutes, and acted inappropriately. However, he denied that he was in breach of the injunction on the basis that GO had not been present and therefore his actions had not been directed towards GO.

Held: MacDonald J: The word ‘towards’ was to be given a narrow construction because a breach of the injunction carries penal consequences. The court took the order to mean that the father was prohibited from using offensive, foul, threatening words or behaviour in the presence of and in the direction of GO. On the LA’s single pleaded allegation, the application of the LA was not proved to the requisite standard and stood dismissed.


X v Y [2019] EWHC 1713 (Fam)

Mrs. Justice Theis

Judgment: 3rd July 2019

This case concerned an unsuccessful application for leave to appeal orders in financial remedy proceedings but a successful application for leave to appeal in the linked Children Act proceedings, in so far as it related to the wording of the child arrangements order.

The Children Act proceedings concerned the parties’ two children B and C. B had 24hour care needs with limited interaction with the outside world and limited life expectancy.
Child arrangements in respect of both B and C were agreed. In evidence, the mother had asked for some discretion in respect of C’s contact and a period of transition in case C did not wish to go. The judge agreed with this, considering that a ‘firmly-worded’ order would likely become a further battleground between the parties with the father insisting that the order be adhered to precisely. The judge decided to record the parents’ agreement as a recital to the order. The arrangements going forward would be left to the parents’ discretion. In particular, the judge had in mind for the mother to have the discretion to change arrangements in the light of any opposition from C either to a particular occasion of contact or to elements in the regime as a whole.

The father sought leave to appeal on the grounds that he had not been given an opportunity to make submissions about the form of the order and whether it should appear as a recital to the order or within the body of the order itself.

Held: Theis J granted leave to appeal the judge’s decision not to make a child arrangements order. Theis J noted that no contact had taken place for 4 months up to the date of the appeal hearing. If this situation were to continue, then the father would be forced to make a fresh application in order to restore his relationship with C. There is no obvious way for the father to enforce a recital to an order in respect of the arrangements for C to spend time with him.