It is relatively rare for costs orders to be granted in proceedings relating to children.
A thorough and excellent article was published on Becket Chambers’ website in December 2023 by Nicole Jennings setting out the relevant principles in private law children’s cases, including when costs orders might be granted and associated procedural aspects. I would refer any reader seeking assistance and guidance in respect of such matters to that article, and it is not my intention to repeat the contents here.
For present purposes, it suffices to state that the general rule in litigation that costs follow the event is disapplied in proceedings relating to children, and that when considering whether to grant costs orders the court must have regard to a range of factors, but probably most relevantly the conduct of the other party.
Nicole Jennings’ article set out details of a number of reported cases in which costs orders were made.
The purpose of this article is to consider a recently reported case, in which further clarification and guidance has been provided in respect of questions as to when and if costs might be granted.
This article is relevant to both private law and public law proceedings.
In February 2025 the Court of Appeal published its judgment in the matter of E (Children: Costs) [2025] EWCA Civ 183.
This was a successful appeal against the decision of a Deputy High Court Judge not to grant a costs order to a father following a lengthy fact-finding hearing.
The Judge had made findings of fact against him including aggressive behaviour, at least one physical assault and pressurising the mother into sex on occasions during the marriage.
The Judge did not make findings sought by the mother in respect of allegations of rape against her or sexual abuse of some of their children. He found that she had behaved in an alienating way towards the children by expressing an ongoing pattern of negative attitudes and communications about the father with the potential or intention to undermine or destroy their relationship with him.
The mother’s allegations included not only sexual abuse of the older children, but also enabling other men to do so as part of a “sex ring”.
The Judge suggested that there was considerable force in the argument that alleged sexual abuse only emerged once it became clear to the mother that this was the only way to prevent the father from having contact with the children. He found that some of her evidence was “simply untrue”. He found that she had convinced herself that the father had sexually abused her children, such that she had pressed relentlessly for other professionals to accept her perspective and to act accordingly, redoubling her efforts when they had not acted in the way she wanted.
The father’s costs application was based upon the court’s refusal to make findings in respect of the serious allegations above, although there were other aspects, including issues arising in respect of an adjournment of a previously listed fact-finding hearing.
The costs application was refused with detailed reasons being provided.
Those reasons included that the father had not been found to be wholly reliable witness, that findings had been made against him and that the finding in respect of the allegations of sexual abuse had not been that the mother had maintained allegations that she knew to be wholly false.
In the Court of Appeal, Peter Jackson LJ’s judgment included a review of the established principles and considerations relevant to applications for costs orders in proceedings relating to children, a number of which may be found in the December 2023 article referenced above.
He rejected a submission that a different test should apply in considering costs applications arising from fact-finding hearings than from other hearings relating to children.
Whereas Wilson LJ in Re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350 had stated that a ring-fenced hearing meant that this was not the paradigm situation to which the general proposition in favour of no order as to costs applied, but that the costs of fact-finding hearings fell into a separate and unusual category, Peter Jackson LJ concluded that this approach should not survive the Supreme Court’s decisions in Re T (Children) (Costs: Care Proceedings; Serious Allegation Not Proved) [2012] UKSC 36 and Re S (A Child) (Costs: Care Proceedings) [2015] UKSC 20.
He stated that these authorities did not support the drawing of distinctions between different kinds of proceedings, and that the fact that orders for costs in care proceedings will be even rarer than they are in private law cases is not a reason for applying different test.
Indeed, he made the point that private and public applications not infrequently co-exist within the same set of proceedings.
Furthermore, that if there were different approaches to separate fact-finding hearings, that could create cost-based incentives for parties to seek, or seek to avoid, separate fact-finding hearings.
Peter Jackson LJ also commented upon a reported decision of a Family Court Recorder in A Mother v A Father [2023] EWFC 105, in which the court had granted a wholly justified costs order against the father based upon his unreasonable litigation conduct, but had also carried out lengthy analysis of the law relating to costs in children cases in order to deduce what he described as elementary principles.
He had concluded that there were different rules as between fact-finding and welfare hearings and as between private law and public law cases, and set out what he considered to be the proper approach for the court to take when questions of costs arise in respect of private law fact-finding hearings.
Peter Jackson LJ describes this judgement as being wrong in a number of respects, including it not being appropriate for a Recorder in the Family Court to seek to give guidance in this expansive manner, but more fundamentally the decision drawing on a number of unsound distinctions.
The correct approach, as above applying to private law and public law hearings, and fact-finding and other hearings, is that the general practice is that costs are not awarded, but that the court retains a discretion including cases in which a party has been guilty of reprehensible or unreasonable conduct.
Peter Jackson LJ also made it clear that those principles applied irrespective of whether a party is legally aided, the appeal also having included the suggestion that a different approach should be taken when a costs application is made in an acrimonious case against the legally aided party as a gateway to seeking recovery against the Lord Chancellor. He stated that there was no advantage in creating a nebulous special category when the court, acting on ordinary principles, is well able to make any costs order that meets the interests of justice in individual cases.
The Court of Appeal granted the appeal and made a costs order in this case.
The Judge was found to have been right to take account of the whole picture. The cross-allegations of domestic abuse were said to be “sadly commonplace and were never likely to lead to a costs award”. Similarly, in the light of the overall findings, there was said to be “no basis for penalising the mother in costs because she failed to prove that (the father) had raped her”.
However, the Judge should have acknowledged that the mother’s extreme allegations of sexual abuse against the older children and handing them over to a paedophile sex ring were of an entirely different character, and that as such his starting point that the parties had made cross-allegations was an inadequate reflection of the true position. He should have recognised that there was no equivalence between those allegations, and secondly that they had completely transformed the proceedings, leading to extraordinary delay and hugely increased costs and that a previous hearing had been adjourned as a direct result of those allegations.
The Judge was also held to be wrong in not considering his power to order a proportion of the father’s costs against the background of the mixture of findings referred to above.
The Judge’s approach to the mother’s motivation was described as being “unduly indulgent”, with a number of specific samples being provided.
The conclusion that the mother’s litigation conduct was not reprehensible or unreasonable could not stand.
The court had adopted a number of different costs formulations at previous hearings including “no order as to costs”, which the Court of Appeal found that the trial Judge could not have disturbed. Other orders were silent as to costs, and the order made at the abandoned fact-finding hearing had reserved costs.
The Court of Appeal substituted the Judge’s decision not to order costs, by an order for the mother to pay half of the father’s costs up to when the issue was determined, except where it had been ordered that there should be no order as to costs. The order was not to be enforced against the mother without permission of the court.
As stated at the beginning of the article, this is not an attempt to set out the principles for costs orders in proceedings relating to children, there are already being a comprehensive article available in this respect. This should be seen very much as an update relevant to private and public law proceedings and all stages of the court process.
For more information on Becket Chambers Family team please contact clerks@becket-chambers.co.uk
