All family lawyers are aware that an order for one party to pay the costs of the other party is rarely made against parties in family proceedings. In my experience this has been a frustrating outcome for some clients that I have represented, who feel that they have had to spend a lot of money on legal fees, only to arrive at a position where an order is made, which they feel was the obvious result from the start. In other words, one inflexible party forced the other party to take them to court, when the eventual order could have been agreed earlier and avoided the costs of a trial.
The recent case of Mother v Father [2025] EWFC 274 explains why that is, by providing an example of when the court will take the exceptional step of awarding costs of one party to be paid by the other.
The relevant facts of the case are these. The father brought an application for a prohibited steps order to prevent the mother from relocating with the child concerned, who was two years old at the time, about three hundred miles away. For all purposes the issue of relocation, was the only issue that was outstanding. It was agreed that the child would live with the mother and spend time with the father.
The mother conveyed her intention to relocate by letter to the father, setting out her proposals for the father to have contact with the child if he agreed to her moving, and making it clear that if there was no agreement, then she would make an application to the court on the issue. At that stage the parties had already had four productive sessions of mediation and a Teams meeting on the issue.
The father’s response to the letter, was to make an urgent application to the court, stating that his application was urgent because delay ran the risk of the mother removing the child out of the United Kingdom.
The court had no difficulty in finding that that assertion by the father was not true and was done solely to circumvent the process of mediation.
The consequence of the father’s application, led to the mother being given two days’ notice to attend the initial hearing, which then had to be adjourned for a contested hearing at a later date. The end result was the mother had incurred costs for the initial hearing and further costs in respect of the application itself, although the parties were still in agreement that the child should live with the mother and spend time with the father. Moreover the father made no counter proposals, except to say that the mother should not be allowed to relocate.
The court found against the father and allowed the mother to relocate. One of the findings made against the father was that he had made his urgent application to “blindside” the mother and by doing so placed strain on her unnecessarily.
The mother then made an application for all her costs and the father agreed that he was liable for the costs in respect of the first hearing, but that the mother should pay the remainder of her costs, as his principled objection to relocation was not unreasonable and deserved to be heard. In effect, he was entitled to to test the mother’s case.
The mother accepted that even if the father had not subverted the rules, there was a real chance the court would have to determine the issue of relocation at a contested hearing. However, she says that the way the father went about it, effectively brought a guillotine down on mediation.
The court awarded the father to pay the mother her costs for the initial hearing and an orderede that the father must pays her costs of a further amount of nearly £24000.
In coming to its decision the court applied Section 51 of the Senior Courts Act 1981 and the Family Procedure Rule 28.
Rule 28(6) sets out that the court may make an order for costs in family proceedings, where it considers it appropriate for one party to pay the costs of another party at any stage of proceedings because of their conduct during the proceedings.
The court found, amongst other reasons, that the father had failed to attend mediation on the issue, and dishonestly claimed the urgency exception on a fallacious assertion that the child was at imminent risk of removal from the jurisdiction, and also that the father did not comply with a direction made at the urgent hearing, for him to file any reasonable or cogent plans for the child under the competing positions.
The court then delved into the reasons why costs orders are only made in exceptional circumstances, referring back to the case of R v R (Costs: Child Case) [1997] 2 FLR 95, which sets out the three categories of reasons.
The first category was that an order for costs would diminish the funds available to meet the needs of the family. The reality in this case however was that both parties were liable for considerable litigation costs and both have to provide for the needs of the child.
The second category, often described as the ‘major reason’ is that the court’s concern is to discover what will be the best for the child, and parties who have a reasonable case to put forward should not be deterred from doing so, under the threat of a costs order being made against them if they are unsuccessful.
The court however was clear to differentiate between being unreasonable in relation to the child and being unreasonable in their attitude to litigation, and found that the father was guilty of the latter, in that he did not conduct his litigation in a reasonable or principled manner.
The last category why costs orders are exceptional, is that its effect would add insult to injury to the person who had lost the debate as to what should happen to the child in the future, and it would likely exacerbate rather than calm the tensions between the parties, which would not be in the interest of the child. The court found however that the father had exacerbated the tensions himself in the way the application was made and how he conducted the litigation.
For all those reasons an order for costs was made against the father. The message is clear that costs order will be made in exceptional circumstances in cases where there is clear evidence of litigation misconduct, as distinct from one party taking what objectively would seem an unreasonable position, on the issue before the court.
For more information about about family team please contact 01227 786331 or clerks@becket-chambers.co.uk
