This article focusses on a lesser well-known application for a pro bono costs order under s.194 of the Legal Services Act 2007 which was recently considered in Mahmoud v Glanville [2025]. To understand how this application came to be, it is helpful to set out the background to this protracted and highly contentious case. The underlying facts are set out in a separate judgment and are quite extraordinary:
- In 2020, the court approved a consent order for Adam to live with the mother and spend time with the father as well as an order prohibiting either party to leave the jurisdiction with Adam without written consent of the other party or an order of the court.
- In the following years, there were repeat cross-applications to vary the consent order as well as multiple proceedings in respect of the mother removing Adam from the jurisdiction on three separate occasions for significant periods of time without written consent of the father or an order of the court. Two passport orders were made against the mother. The mother was found to have a propensity to make false and baseless allegations against the father.
- A global psychological assessment concluded that the mother was unable to prioritise Adams’s needs above her own, she presented as a high risk of absconding and Adam had suffered emotional harm as a result.
- Following the assessment but prior to the final hearing, Adam was taken from the father at the school gates by “heavies” and delivered to the mother in a nearby car. The mother was found, amongst other things, to have removed Adam from the father’s care in breach of a court order. Adma’s whereabouts were then concealed by the mother for nearly 8 months.
- The court made the following orders: (i) permission for the father to relocate to the Netherlands (due to his employment), (ii) declined to make a spend time with order in the mother’s favour, (iii) discharged the Schedule 1 order requiring the father to make payments to the mother and (iv) s.91(14) order against the mother.
- Adam was eventually returned to the father’s care and the following orders were made: (i) mother’s application for permission to apply for a child arrangements orders was dismissed, (ii) mother’s parental responsibility was restricted, (iii) non-molestation order against the mother was extended for four further years, (iv) mother’s passports were returned to her and (v) an order for indirect contact between the mother and Adam with any progression by consent.
- The mother continued to refute the court’s findings, continued to be critical of the father and the professionals in the matter. The court found that she had failed to demonstrate any meaningful change in her approach, and that her history of non-compliance and unilateral action in relation to Adam required the imposition of more restrictive orders.
The father applied for two costs orders. The first being a conventional costs order in respect of his legal costs incurred; and secondly, a pro bono costs order requiring the mother to pay costs the father would have incurred but for his pro bono representation to the Access to Justice Foundation.
The court made a costs order for £95,000 against the mother in respect of the father’s legal costs and a further pro bono costs order in the sum of £20,000.
The statutory power in s.194 is given effect by CPR 46.7 and guidance is contained in CPR PD46. The jurisdiction to make a pro bono costs order encompasses the Family Court. Such an order is intended to reflect the financial value of the free legal assistance provided and is calculated by reference to the amount that would ordinarily be recovered by a party. The costs cover any period when free representation was provided. Any costs order should provide that payment is made to the prescribed charity.
In Manolete Partners v White [2024] the Court of Appeal emphasised that the power to make an order under s.194 must also be exercised having regard to the legislative purposes behind the enactment of that section namely that it was designed to put the parties on a more equal litigation footing by exposing the privately funded party to a similar risk of adverse costs.
In Mahmoud v Glanville, the court held that the availability of a pro bono costs order under s.194 is not excluded simply because the proceedings relate to children. Where a court would otherwise consider making a costs order on the grounds of unreasonable behaviour, the same circumstances may justify a pro bono costs order:
“If s.194 did not cover this situation, a party to proceedings concerning children who is litigating against a party represented pro bono could act entirely unreasonably or reprehensibly without fear of costs consequences, on the basis that they are not at risk of an adverse costs order in favour of the party represented pro bono. This would also in my judgement run contrary to the purpose of s.194 intended by Parliament.”
The procedural approach to determining whether to make a pro bono costs order in a case concerning children will be broadly the same as the approach to the question of costs in any other children proceedings: (i) each case will turn on its own facts, (ii) the first stage is determining the conduct and the unreasonable conduct relied upon must relate to litigation and not the child’s welfare and (iii) the second stage is determining the quantum.
Mahmoud v Glanville provides useful clarification as to the scope of the existing power under s.194 and demonstrates the court’s willingness to make substantial costs orders against a party who has engaged in (significant) unreasonable litigation conduct. Applications under s.194 are likely to remain uncommon, given the high threshold for costs orders in children cases, however, an application for a pro bono costs order (or proposed application) may be a helpful tool to deploy in cases where a party’s litigation conduct is considered unreasonable to ensure compliance.
The team at Becket Chambers frequently take instructions in relation to all aspect of private law, inclusive of costs applications. Please do not hesitate to contact us at clerks@becket-chambers.co.uk for further details.
