This article intends to demonstrate the current thinking in relation to an application for costs post fact-finding hearings. It is especially significant in cases where the party making the allegations is not legally aided, and what the potential consequences, are if findings are not made.
In the recent case of Re E (Children:Costs) [2025] EWCA Civ 183, a decision of the Court of Appeal, the court was asked to determine the issue of costs in those circumstances.
The relevant facts are these: the father made an application for a child arrangements order, to “spend time” with his four children aged 11,10, 8 and 3 years old. The parties had separated in January 2022 and the children remained living with the mother. The application was made shortly after separation in May 2022.
During the proceedings, both parties made allegations of domestic abuse against the other. The father alleged physical abuse, coercive and controlling behaviour and emotional abuse. The mother initially made similar allegations. Later, she made further allegations, that the father had physically and sexually abused three of the children, and that he had enabled other men to sexually abuse the oldest two, as part of a “sex ring”.
Those allegations were investigated by the local authority and the police. In respect of the police investigations, the children were ABE interviewed and thereafter they took no further action.
The fact-finding hearing was initially listed to be heard in November 2023. At the pre-trial review hearing in October, the mother confirmed through her counsel that she could identify the third parties she alleged to be part of the sex ring, but she had not done so previously because the police had not finished their investigations. At that hearing the mother was directed to name the third parties but she failed to do so.
The fact-finding hearing was heard in May 2024, two years after the father made his application and six months after the initial listing. The court made findings against both parties, but it did not make a finding in respect of the allegations against the father of sexual abuse.
After the decision the court made a direction to receive expert advice on how the children could be freed from “the false narrative that they have been sexually abused by their father”.
The father in turn made an order for costs. His application was made partly on the basis that the mother had made grave allegations mid-proceedings against him, which led to him incurring further costs defending them and the fact-finding hearing being adjourned for a further period six months. The grave allegations the father referred to were the allegations of sexual abuse.
The Judge refused to make an order for costs and at paragraph 59 of his judgment said this:
“In my analysis, these are proceedings where both parents have made cross-allegations against each other. In respect of each parent I made findings on some of their allegations but did not make findings on all of them. The fact-finding hearing had not been listed just to consider the mother’s allegations of sexual abuse against the father. They had also been listed to consider the mother’s allegations of domestic abuse against the father, the father’s allegations of domestic abuse against the mother and the father’s allegations of alienation against the mother…”
In respect of the allegations of sexual abuse upon the children the Judge was off the view that the mother had maintained the allegations because she had convinced herself that the father had enabled other men to sexually abuse the children, and not that she had maintained those allegations, knowing them to be wholly false. He felt that was an important distinction and therefore made no order for costs.
On appeal the Court of Appeal made it clear that the scope of appeal was restricted to whether an order should be made for costs, irrespective of whether or not the allegations were made by a party who was legally aided or not.
The Court of Appeal restated the general principle when awarding costs in family proceedings, which is that costs should not be awarded unless in exceptional circumstances. One of the exceptional circumstances was where a party has been guilty of reprehensible or unreasonable behaviour in relation to the proceedings.
The court also made it clear that there was no distinction to be drawn from whether the proceedings involve public law proceedings, private law proceedings, a party is legally aided or what type of hearing it is. Regardless, an order can be made at any time under FPR 28.1.
After reviewing the relevant case law the court came to the conclusion that the allegations by the mother that the father had sexually abused the older children and handed them down to a paedophile sex ring was of an entirely different character to the other allegations which the court said were “sadly commonplace” and or never was likely to lead to an order for costs.
In addition, those allegations, the court said, had completely transformed the proceedings, leading to extraordinary delay and hugely increased costs. As a result, the Judge should have separated out the unfounded allegations of sexual abuse involving the children.
The Court of Appeal has therefore made it clear that the days when parties choose to make allegations of a reprehensible manner, if found not to be proven, can have significant repercussions for them in having to pay a portion or all of the other party’s costs making the allegations and this is especially so where that party is not legally aided.
It follows that where a party is not legally aided, caution has to be taken, and advice given at the outset, about whether there is the evidence available to prove the allegations; especially in circumstances where they are not “commonplace”, but are of a “reprehensible” nature.
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