DEVELOPMENTS IN
PRIVATE LAW
SEMINAR
26 MARCH 2013
Crown Office Row Chambers,
119 Church Street, Brighton BN1 1UD
CONTENTS
1.
Speaker details
2.
Smoke and Mirrors: An Update on Enforcement by Camilla Wells
3.
Leave to Remove from Jurisdiction by Anita Mehta
4.
Section 8 orders, Interim Orders, Shared Residence Orders & Conditional
Residence Orders by Daniel Miller
5.
1COR FamilyTeam
6.
Members of Crown Office Row, Brighton
SPEAKERS
Camilla Wells
Camilla practises in all areas of Family Law though she has a particular interest and great
deal of experience in Ancillary Relief cases at all levels. She has conducted a number of
complex private law children cases in the High Court, including a no contact order case (with
a s.91 (14) bar on future applications), international child abduction cases, one of which
featured in the Sussex Press. Her other areas of practice include public law work. She appears
for Local Authorities as well as parents and guardians.
Camilla regularly sits on Panels (Disciplinary and Ancillary Relief Adjudications) convened
by the Council of The Inns of Court. She sits as Specialist Counsel on the Panel in Ancillary
Relief matters. She advises the Panel on whether a barrister has been negligent in Ancillary
Relief Proceedings. Camilla also advises the Legal Services Commission on whether they
should provide funding in High Costs cases and cases of significant importance in the High
Court and Court of Appeal
Anita Mehta
Anita Mehta is a dedicated family practitioner specialising in all areas of family law and
related civil proceedings. This includes: Children (both Public and Private law), Divorce
including Ancillary Relief and Declarations of Marital Status, Financial Provision for
Children, Trusts of Land relating to cohabitee disputes and Domestic Violence cases.
Anita was called to the bar in 2002. Since then she has built up experience in a range of
courts and tribunals, including the Court of Appeal. Anita is regularly instructed by parents,
Local Authorities and for children themselves. Her experience has included: •
•
•
•
•
acting for parties suffering poor mental health or learning difficulties;
cases involving serious injury through neglect or physical assault,
sexual abuse allegations;
immigration issues; and
the recovery of children from abroad.
In private law children matters, Anita is regularly instructed in cases involving applications to
remove from the jurisdiction and special guardianship.
Anita has experience in a broad spectrum of ancillary relief cases dealing with a variety of
issues including:
•
•
•
•
•
•
Maintenance pending suit, Financial Provision and Property Adjustment Orders
including pension sharing and attachment orders
Variation applications
Trust arrangements
Pre-nuptial agreements
Business accounts and cases with significant debts or insolvency issues
Anita’s practice under the trust of land is focused solely upon dealing with disputes
between former cohabitees. Such cases have often included applications under
Schedule 1 of the Children Act 1989.
Daniel Miller
Daniel Miller practises in all areas of family law in Sussex and London. He has had extensive
exposure to ancillary relief cases at all levels, including 'big money' cases, as a consequence
of completing his pupillage at 29 Bedford Row Chambers in London, and has assisted in
many high profile cases.
His other areas of practice include public and private law children work, leave to remove
from the jurisdiction, injunctions, claims under the Trusts of Land and Appointment of
Trustees Act 1996, and some civil work. In public law, he acts for the local authority and for
a variety of respondents. Daniel has appeared in the High Court on numerous occasions,
including in Hague Convention proceedings, and in a case where he won an order for costs in
a ‘high costs’ case in matrimonial proceedings.
SMOKE AND MIRRORS:
An update on enforcement including transfer of residence and s.91(14) orders
By Camilla Wells
Current state of the Law. Quick re-cap on developments and future plans for legislation.
Few years ago a very wide government consultation took place, to find out how contact could
be ‘made’ to work.
A new approach was taken, which aimed to deal more effectively with problem parents by
giving the courts novel and various new powers. The result was the Children and Adoption
Act 2006 (CAA) which came into force on 8th Dec 2008. The aim of the CAA 2006 is to be
tougher on parties who breach contact orders and to introduce new remedies to run parallel to
the old ones.
New Powers
New powers to order parents to attend parenting and other programmes and even to
impose Community Service-type penalties:
Making contact activity directions requiring a parent to attend:
1. Information/assessment meetings about mediation;
2. Parenting information Programme. All familiar with the PIP;
3. DV prevention programme.
The court can make these directions at any time when a contact application is being
considered.
The Court has the power to ask Cafcass for information in relation to the making of these
orders. Cafcass employ Family Court Advisors who work exclusively within the court system
they sit with judges on cases and prepare reports.. if requested they must inform the court of
the appropriateness of making such orders, taking into account the LA availability of the
contact activities, the parent’s suitability to participate including their work and other
commitments and whether it will actually make any difference.
All contact orders made post 8 Dec 2008 shall contain a warning notice re failure to comply.
Making Enforcement Applications
Application made if warning notice to a contact order has been breached.
Court can impose an unpaid work requirement (40-200 hrs) also known as community
service.
Court must be satisfied beyond a reasonable doubt that there is no reasonable excuse
for non-compliance with the contact order.
The court will consider:
•
Necessity of enforcement order to ensure compliance;
•
Likely effect include on religious or education/work arrangements;
•
Availability of local unpaid work;
•
Welfare of the child.
Monitoring Enforcement Orders
Cafcass will be asked to monitor any requirement for unpaid work imposed by the Court. The
Probation service will undertake the monitoring and will report to Cafcass.
Cafcass must report to the Court any non-compliance.
Compensation for Financial Loss
A party may make an application for compensation of loss caused by the other party’s noncompliance with terms of the order.
Welfare of child considered by the court.
Court can request information from Cafcass as to the welfare of child in relation to effect of
one party paying compensation.
Andrea Holtham gave the Cafcass perspective on enforcement orders:
She says her office is responsible for all courts from Hastings to Chichester and they also see
all applications in Sussex and Surrey too.
On average there are 60 or 70 applications per month. Around 5 of those are enforcement
applications. She says that she feels there has been a slight increase in applications in the
last year.
She says she has personally only done one case involving unpaid work and has only seen
about 3 or 4 cases in the last year. She passes the cases on to David Smith in the main. There
are 2 cases that she knows about. one where M not complying with any orders of the court. M
did not comply with unpaid work, became a nuisance because case passed to Probation but
they could not close their file because the Court was doing nothing about it. The F gave up
and the enforcement application went nowhere. The other case was successful in that the
threat of the unpaid work order meant that the M complied with the contact order.
She thinks (and I agree) that unpaid work is a good way for testing the strength of opposition
to contact. She thinks PIPs are helpful but most helpful early on in proceedings. Feedback is
positive. Surrey are running a pilot of PIP Plus which is a mediation service following on
from the PIP. The problem with this may be the cost but because it is a pilot there are no
costs at the moment. The feedback is positive.
She could not say if some courts tougher on enforcement than others in our local area.
David Norgrove as chair of the Family Justice Board has published their action plan for
implementation of the Government’s reform of the Family Justice System. By April/Summer
2014, a new system will have been implemented whereby if a Court Order is breached within
the first 12 months, the case can be returned to Court within a matter of weeks with the aim
of resolving it and if it cannot be resolved, timetabling it in order to move the matter forward.
(paragraph 14 of the Action Plan).
Seems clear from the spirit of the legislation that the view is that there need to be more
effective enforcement provisions. The case law from the Higher Courts shows the same
picture. Interesting to compare this with the approach of our local Judges.
Enforcement cases:
RE E (a child) 2011 EWHC 3521 fam
Decision of Hedley J
The importance of the Guardian remaining involved was reiterated.
Hedley J commented that it was important to identify at an early stage those cases with
the hallmarks of intractability. In such cases it is important to have an opportunity to
give evidence on welfare (rather than fact-finding) at an early stage. Judicial continuity
was important. If the mattes is transferred to the HC it should not be transferred absolutely
in the first instance, but rather for directions so that a new mind can be applied to the
case.
RE LW Children Enforcement EWCA civ 1253
Lengthy proceedings concerning M’s contact with her son. M applied for enforcement and a
compensation order. Judge at first instance decided it was not reasonable for the F to say that
he would not force his son to go to contact if he did not want to. This was in the light of a
Cafcass report stating that the child did not want to see his M.
Held by CA that the Judge had overstated what the contact orders required the F to do.
Running through the Judgment of the Court below was the F’s obligation to ‘ensure’ that his
son went with his M and the contact took place. F had to ‘make the child available’ for
contact.
The CA noted that before making a coercive order against a parent, who the court believed to
be the author of the child’s resistance to contact, it was important for the court to ascertain
whether that parent was still capable of reversing the child’s attitude; otherwise the
coercive steps could be counter-productive. The committal order and the compensation
order could not stand.
Transfer of Residence cases:
VVV (Children) Contact: Implacable hostility (2004) EWHC 1215 (fam)
Decision of Bracewell J.
Where the M had shown implacable hostility to the children’s contact with the father, they
had suffered emotional abuse as a result of her campaign against contact, the children’s need
to have a relationship with their father could only be met by transferring residence to him.
All of the allegations made by M were said to be false or wholly exaggerated. F had
proved himself to be wholly committed to the children and capable of providing for
them. The children had suffered harm as a result of emotional abuse.
Re W (2010) EWCA civ 1280
Decision by Sir Nicholas Wall, President of the Family Division. Transfer residence from
M to PGM on the basis that M had refused to comply with Contact Orders to the F. It
was found that the daughter was likely to suffer significant harm if she remained in the care
of the M as a result if being deprived of a relationship with her F. M had repeatedly failed to
attend Court an comply with Orders and was eventually sentenced to 7 days’ imprisonment.
She had made a number of false claims about the father. He was a paedophile, drug user and
not the father. Out of 34 contact visits, 2 had gone ahead.
Held: ~If the Judge had changed the residence as a means of punishing the M for her failure
to comply with court orders, that would have plainly been an inappropriate exercise of
Judicial discretion but the Judge had moved the child because she had taken the view that
her welfare in the long term required it. There was ample evidence to support this view.
Appeal was dismissed.
RE S (a child) (2010) EWCA civ 325 CA
Decision of Thorpe LJ, Smith LJ, Baron J.
Interesting case for showing practical difficulties of transferring residence. Whether there
should be an immediate transfer of care from M to F or a stepping stone approach using
foster care as a step with contact to F.
In this case, Court was assisted by expert evidence from Dr. Kirk Weir, the centre for
separated families and CAMHS. But the transfer failed. It is essential that in cases
involving alienated children that professional expert evidence is sought by the Court.
This case is one where the Court attempted to use the Tipstaff to effect transfer. It has been
determined that the use of a Tipstaff to force transfer is not a breach of the child’s article 5
rights.
Warwickshire County Council v (1) TE (2) SH (3) S (A child by his Guardian J) (2010)
Decision of Judge Clifford Bellamy
Protracted contact proceedings resulted in the residence of the child transferring to F but the
child refused to engage with F so it was agreed that there should be a residence order in
favour of M. There was a supervision order in favour of the LA also.
It was initially decided that there would be an immediate transfer of residence, involving the
tipstaff if necessary. The decision was upheld on appeal but the Court ordered that the
transfer be effected by placing the child in foster care and then transferring to F. Contact was
initiated between the child and F once the child had been placed in foster care but the child
would not engage with the F at all. On each occasion, he sat with his head is his lap and his
fingers in his ears. After 4 contact sessions, the SW became concerned about the impact of
this on the child. The transfer of residence had failed.
Held There was no consensus in the research as to the approach that should be taken in a case
involving an alienated child. There was a clear and urgent need for further debate and
research. It is essential that in every case involving an alienated child that the Court
had the benefit of expert evidence.
A City Council V (1) M (2) F (3) C (By her children’s Guardian (2012) fam div
Decision of HHJ Cleary
Making of a final care order and an order under s.91(14) in relation to a 13 year old girl
was appropriate even though both parents loved her and sought residence, both parents were
incapable of providing a nurturing environment that was called for after 9 years of
emotional harm caused by their conduct and antagonism.
This was a case where there had been a transfer of residence from M to F in 2004. M still
bitterly resented the transfer. The child exhibited signs of extreme distress. Neither
parent was able to comprehend the criticisms made against them nor understand why their
contact was supervised.
The child needed a nurturing environment which sheltered her from conflict and took away
the responsibility of placing her parents’ needs before her own. It was ordered that each
parent would see her 6 times per year. Section 91(14) did not prohibit the making of an
application, but required the court’s leave before such an application could proceed.
Perhaps one way of dealing with a transfer of residence would be by way of threat rather than
actuality so in the event of a non-compliance with a contact order, residence may be
transferred. A conditional residence order:
RE M (Children) (2012) EWHC 1948
Decision of Jackson J
F’s application for transfer of residence. Judge found that M did not consider that the children
needed a relationship with their F and was not supporting contact. Further that the children
wanted to see their F but were being prevented from doing so. Judge found that the children’s
welfare would be best promoted by living with their F unless the M was able to promote
contact. In carrying out a fine balancing exercise, the Judge found that the change in
residence and associated disruption was a risk and therefore they would continue living with
their M but in the event that the M did not facilitate staying contact with the F, there
would be a change of residence. There was therefore a conditional residence order
implemented. The Order was made conditional for a period of 8 weeks and thereafter for a
year, the transfer of residence would not be automatic but the F would be entitled to apply
back to Court for an early decision, in front of Jackson J.]
RE C (Residence)(2007)EWHC 2312 FAM
Decision of Sumner J
The Judge declined to make an immediate change of residence on the basis that the
current primary carer agreed to undergo therapy and work on a joint parenting plan,
which subject to review by the expert psychiatrist and Court.
Section 91(14) Children Act 1989 cases:
The main authority in s. 91(14) orders remains Re P (Section 91(14) Order (1999) 2 FLR
573 in which the Court of Appeal stated, inter alia, that this order should only be used
sparingly and should be the exception and not the rule. It is possible to make a s.91(14) order
even without a history of unreasonable applications. It is possible for the Court to make a
s.91(14) order even without a request from a party so long as the parties are given the
opportunity to be heard properly in relation to the imposition of the proposed sanction. It is
possible for an order to be made on a without notice basis but only in the most exceptional of
cases.
H (a child) (2010) EWCA 1296
M appealed on basis that the Guardian had applied for the s.91(14) order following long
running litigation between the parties. The appeal was based, inter alia, on the fact that the
Guardian did not have the ability to make such an application and that the Judge had failed to
put a time limit on the order.
The CA held that the Guardian was entitled to make a s.91 (14) application as the child
was a party to proceedings and any party can make a s.91 (14) application. The trial Judge
had fallen into error by not time limiting the s.91(14) order or alternatively giving
reasons for why he did not place a time limit on the order. Permission to appeal was
granted limited to the duration of the order.
RE M (a child) (2012) EWCA civ 446
F’s application for contact and PR. During the course of the hearing the F lost his selfcontrol and ranted at the injustice of the system and at the performance of the guardian. The F
then applied to withdraw his applications. The trial Judge made a s.91(14) order for a period
of 2 years on the recommendation of the Guardian.
In allowing the appeal Thorpe LJ concluded that the Judge, in considering the child’s welfare,
should have given the F an opportunity to come to his senses and adjourned the matter for 24
hours. The Judge was plainly wrong to dismiss the father’s applications. ‘The proper course
was to draw him back into the proceedings and not put a barrier on his further
engagement with the system.’
The section 91(14)m order was set aside. It was proposed that the F give an undertaking to
issue an application for contact, the treating psychologist files a supplementary report, a new
Guardian prepare a report and the matter be listed for directions in the father’s application.
Conclusion:
The courts still need to get tougher. They should use the unpaid work provision and the
compensation orders more regularly.
Invite the Court to have an early hearing to assess what is really going on. Is it a case of
implacable hostility or are there genuine welfare issues? In cases which look to become
entrenched, take them to the High Court for a ‘second opinion.’
If the Courts grasped the nettle at an early stage, so many contact cases may well not get to
the stage of being impossible to resolve.
Delay is the problem and the fact that children take on the views that they are being subjected
to and if they are not having contact with the other parent there is no one to show them that
there is an alternative.
Leave to Remove from the Jurisdiction
By Anita Mehta
‘So what is the principle in these cases?’
Children Act 1989
• Specific Issue Orders; or
• Leave to Remove
s.8 Residence, contact and other orders with respect to children.
(1) In this Act
•
•
A prohibited steps order means an order that no step which could be taken by
a parent in meeting his parental responsibility for a child, and which is of a
kind specified in the order, shall be taken by any person without the consent of
the court;
a specific issue order means an order giving directions for the purpose of
determining a specific question which has arisen, or which may arise, in
connection with any aspect of parental responsibility for a child.
s.13 Change of child’s name or removal from jurisdiction.
(1) Where a residence order is in force with respect to a child, no person may:(a) cause the child to be known by a new surname; or
(b) remove him from the United Kingdom without either the written consent of every
person who has parental responsibility for the child or the leave of the court.
(2) Subsection (1)(b) does not prevent the removal of a child, for a period of less than one
month, by the person in whose favour the residence order is made.
(3) In making a residence order with respect to a child the court may grant the leave required
by subsection (1)(b), either generally or for specified purposes.
Does it make a difference?
• If the application is made under CA 1989, s.8 there is a statutory requirement to have
regard to the s 1(3) welfare checklist.
• If the application is made under CA 1989, s.13, whilst there is no statutory
requirement, courts should take the precaution of referring to the welfare checklist.
In deciding whether to grant leave to remove the child from the jurisdiction to the parent
with care of the child, the child’s welfare is the Court’s paramount consideration.
Where the parent seeking to remove is the primary or sole carer
The guidance set out in PAYNE v PAYNE (2001) EWCA CIV 166 is relevant
Note – it is guidance and not principle!
Thorpe LJ said:
“(31) Logically and as a matter of experience the child cannot draw emotional and
psychological security and stability from the dependency unless the primary carer
herself is emotionally and psychologically stable and secure. The parent cannot give
what she herself lacks. Although fathers as well as mothers provide primary care I
have never myself encountered a relocation application brought by a father and for
the purposes of this judgment I assume that relocation applications are only brought
by maternal primary carers. The disintegration of a family unit is invariably
emotionally and psychologically turbulent. The mother who emerges with the
responsibility of making the home for the children may recover her sense of wellbeing simply by coping over a passage of time. But often the mother may be in need of
external support, whether financial, emotional or social. Such support may be
provided by a new partner who becomes stepfather to the child. The creation of a new
family obviously draws the child into its quest for material and other fulfilment. Such
cases have given rise to the strongest statements of the guidelines…. In the
remarriage cases the motivation for relocation may well be to meet the stepfather’s
career needs or opportunities. In those cases refusal is likely to destabilise the new
family emotionally as well as to penalise it financially.”
At paragraph 40 as follows:
“(a) Pose the question: is the mother’s application genuine in the sense that it is not
motivated by some selfish desire to exclude the father from the child’s life? Then ask
is the mother’s application realistic, by which I mean founded on practical proposals
both well researched and investigated? If the application fails either of these tests
refusal will inevitably follow.
(b) If however the application passes these tests then there must be a careful
appraisal of the father’s opposition: is it motivated by genuine concern for the future
of the child’s welfare or is it driven by some ulterior motive? What would be the
extent of the detriment to him and his future relationship with the child were the
application granted? To what extent would that be offset by extension of the child’s
relationships with the maternal family and homeland?
(c) What would be the impact on the mother, either as the single parent or as a new
wife, of a refusal of her realistic proposal?
(d) The outcome of the second and third appraisals must then be brought into an
overriding view of the child’s welfare as the paramount consideration, directed by the
statutory welfare checklist insofar as appropriate.
In suggesting such a discipline I would not wish to be thought to have diminished the
importance that this court has consistently attached to the emotional and
psychological well-being of the primary carer. In any evaluation of the welfare of the
child as the paramount consideration great weight must be given to this factor.”
Judgment of DAME ELIZABETH BUTLER-SLOSS in respect of cases where the
application relates to mother wishing to join the step-father abroad:
“The view of both courts was well-summarised by Griffiths LJ in Chamberlain
(above), that the welfare of young children was best met by bringing them up in a
happy, secure family atmosphere. Their happiness and security, after the creation of
a new family unit, will depend on becoming members of the new family. Reasonable
arrangements made by the mother or stepfather to relocate should not in principle
be frustrated, since it would be likely to have an adverse effect upon the new family.
It might reflect upon the stability of the new relationship. The stress upon the second
family would inevitably have a serious adverse effect upon the children whose
welfare is paramount. Even if there is not a new relationship, the effect upon the
parent with the residence order of the frustration of plans for the future might have
an equally bad effect upon the children. If the arrangements are sensible and the
proposals are genuinely important to the applicant parent and the effect of refusal of
the application would be seriously adverse to the new family, eg mother and child,
or the mother, stepfather and child, then this would be, as Griffiths LJ said, a factor
that had to be given great weight when weighing up the various factors in the
balancing exercise.
(84) The strength of the relationship with the other parent, usually the father, and
the paternal family will be a highly relevant factor, see MH v GP (Child:
Emigration) [1995] 2 FLR 106. The ability of the other parent to continue contact
with the child and the financial implications need to be explored. There may well be
other relevant factors to weigh in the balance, such as, with the elder child, his/her
views, the importance of schooling or other ties to the current home area. The state
of health of the child and availability of specialist medical expertise or other special
needs may be another factor. There are, of course, many other factors which may
arise in an individual case. I stress that there is no presumption in favour of the
applicant, but reasonable proposals made by the applicant parent, the refusal of
which would have adverse consequences upon the stability of the new family and
therefore an adverse effect upon the welfare of the child, continue to be a factor of
great weight. As in every case in which the court has to exercise its discretion, the
reasonableness of the proposals, the effect upon the applicant and upon the child of
refusal of the application, the effect of a reduction or cessation of contact with the
other parent upon the child, the effect of removal of the child from his/her current
environment are all factors, among others which I have not enumerated, which have
to be given appropriate weight in each individual case and weighed in the balance.
The decision is always a difficult one and has not become less so over the last 30
years.
(85) In summary I would suggest that the following considerations should be in the
forefront of the mind of a judge trying one of these difficult cases. They are not and
could not be exclusive of the other important matters which arise in the individual
case to be decided. All the relevant factors need to be considered, including the
points I make below, so far as they are relevant, and weighed in the balance. The
points I make are obvious but in view of the arguments presented to us in this case, it
may be worthwhile to repeat them:
(a) The welfare of the child is always paramount.
(b) There is no presumption created by s 13(1)(b) in favour of the
applicant parent.
(c) The reasonable proposals of the parent with a residence order
wishing to live abroad carry great weight.
(d) Consequently the proposals have to be scrutinised with care and the
court needs to be satisfied that there is a genuine motivation for the
move and not the intention to bring contact between the child and the
other parent to an end.
(e) The effect upon the applicant parent and the new family of the child
of a refusal of leave is very important.
(f) The effect upon the child of the denial of contact with the other
parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the
parent left behind may be very significant.”
(86) All the above observations have been made on the premise that the question of
residence is not a live issue. If, however, there is a real dispute as to which parent
should be granted a residence order, and the decision as to which parent is the more
suitable is finely balanced, the future plans of each parent for the child are clearly
relevant. If one parent intends to set up home in another country and remove the
child from school, surroundings and the other parent and his family, it may in some
cases be an important factor to weigh in the balance. But in a case where the
decision as to residence is clear as the judge in this case clearly thought it was, the
plans for removal from the jurisdiction would not be likely to be significant in the
decision over residence. The mother in this case already had a residence order and
the judge’s decision on residence was not an issue before this court.'
Step-father/ new marriages
•
The classic leave to remove argument
Re B (Children) and S (Child) [2003] EWCA Civ 1149 dealt with appeals relating to two
separate applications for leave to remove from the jurisdiction.
The facts of Re B are summarised by Mr Justice Thorpe as follows:
“There were difficulties in the marriage in and after 1999 but its collapse can be
traced to the mother's chance meeting with Mr K at a professional conference in
February 2002. Mr K is a few years younger than the mother, married but without
children. He is a successful and affluent South African businessman. The mother and
Mr K met again in March 2002 and at their third meeting in April 2002 their sexual
relationship commenced. Shortly thereafter each ended their respective marriages
and committed themselves to each other.”
The Judge then went onto offer the following guidance, updating the guidance offered in
Payne:
“Our judgments did not ignore the other principal category of case in which the
primary carer has forged a new family unit by marriage or relationship that brings a
step-father figure into the lives of the children of the failed relationship. However
there is only a brief pointer to this category in sub−paragraph (c) of paragraph (40)
and sub−paragraph (e) of paragraph (85). Of course a full and careful reading of
the judgments in Payne v Payne alerts the reader to the important bearing that the
natural gravitation of the new family has on outcome. The mother's attachment and
commitment to a man whose employment requires him to live in another jurisdiction
may be a decisive factor in the determination of a relocation application. That does
not entail putting the needs and interests of an adult before the welfare of the
children. Rather the welfare of the children cannot be achieved unless the new
family has the ordinary opportunity to pursue its goals and to make its choices
without unreasonable restriction. This principle was clearly recognised in the
judgments of Winn LJ and Sachs LJ in Poel v Poel .”
Payne v Payne (2001) EWCA Civ 166
(72) Ormrod LJ then referred to the speech of Lord MacDermott in J and Another v
C and Others [1970] AC 668, (1969) FLR Rep 360 in which Lord Macdermott
reasserted the paramountcy of the interests of the child in all these cases. Ormrod
LJ pointed out that the decision was first reported in 1969 but its impact might not
have been immediately felt. He said at 443:
“… it may well be that Sachs LJ did not have that speech in the forefront of his
mind as we all have. If he had I think he might perhaps have expressed his view
slightly differently, making it specifically clear that his judgment was based on the
interests of the children which was the paramount consideration.”
(73) Griffiths LJ said at 445:
“The welfare of young children is best served by bringing them up in a happy,
secure family atmosphere. When, after divorce, the parent who has custody of the
children remarries, those children then join and become members of a new family
and it is the happiness and security of that family on which their welfare will
depend. However painful it may be for the other parent that parent has got to
grasp and appreciate that fact. If a stepfather, for the purposes of his career, is
required to live elsewhere the natural thing would be that he will wish to take his
family, which now includes his step-children, with him, and if the court refuses to
allow him to take the step-children with him he is faced with the alternative of
going and leaving the family behind which is a very disruptive state of affairs and
likely to be very damaging to those step-children or alternatively he may have to
throw up his career prospects and remain in this country. If he has to do that he
would be less than human if he did not feel a sense of frustration and, do what he
may, that may well spill over into a sense of resentment against the step-children
who have so interfered with his future career prospects. If that happens it must
reflect upon the happiness and possibly even the stability of this second marriage.
It is to that effect that the court was pointing in the decisions of Poel v Poel [1970]
1 WLR 1469 and Nash v Nash [1973] 2 All ER 704 and it was stressing that it
was a factor that had to be given great weight when weighing up the various
factors that arise when a judge has to decide whether or not to give leave to take
children out of the jurisdiction.’
Shared Care cases
•
Do the Payne ‘guidelines’ apply to cases where the parents share care?
K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793
LJ Thorpe :
[56] “Finally I must deal with the authority which I consider the judge should have
applied namely Re Y (Leave to Remove from Jurisdiction). Having cited Payne v
Payne and the President’s guidance at para [85], Hedley J continued:
‘[14] Now, the court clearly contemplates two different states of affairs. The one,
the more common and in some ways the more obvious, is where the child is clearly
living with one parent, and it is that parent that wishes to leave the jurisdiction, for
whatever reason. The other, and much less common state of affairs, is where that
does not exist and either there is a real issue about where the child should live, or
there is in place an arrangement which demonstrates that the child’s home is
equally with both parents. In those circumstances, which are the ones that apply in
this case, many of the factors to which the court drew attention in Payne v Payne
[2001] EWCA Civ 166, [2001] Fam 473, [2001] 1 FLR 1052 whilst relevant may
carry less weight than otherwise they commonly do.
[15] The father does not have an application for a residence order in this case,
but it was raised only in response to the mother’s application for permission to
remove, and the father’s actual proposal is for a continuation of the present
position.
[16] This case accordingly falls outside the main run of cases that one
encounters where this problem is raised, and certainly within my own experience is
unique. What it seems to me I must do is to remind myself of the opening provisions
of the Children Act 1989. Section 1(1) says that when a court determines any
question with respect to the upbringing of a child, the child’s welfare shall be the
court’s paramount consideration, and in considering these issues I have to take a
number of matters into account as required by s 1(3). It seems to me that of those
matters, the ones that are important in this case are the educational and emotional
needs of Y, the likely effect on him of any change in his circumstances, and his age
and background so far as his life is presently concerned. It seems to me that I need
to remind myself that the welfare of this child is the lodestar by which the court at
the end of the day is guided.’
[57] I fully concur with the reasoning and conclusion of Hedley J. What is
significant is not the label ‘shared residence’ because we see cases in which for a
particular reason the label is attached to what is no more than a conventional
contact order. What is significant is the practical arrangements for sharing the
burden of care between two equally committed carers. Where each is providing a
more or less equal proportion and one seeks to relocate externally then I am clear
that the approach which I suggested at para [40] in Payne v Payne should not be
utilised. The judge should rather exercise his discretion to grant or refuse by
applying the statutory checklist in s 1(3) of the CA 1989.
[58] An excellent example of this approach is to be seen in the recent judgment of
Theis J in the case of C v D [2011] EWHC 335 (Fam), (unreported) 24 February
2011. Under the subheading ‘Welfare checklist’ she turns in para [64] to a
detailed consideration of its subparagraphs over the course of three pages of
judgment. That exercise leads her to her conclusion stated in paras [65] and [67].
[59] The adjustment in judicial approach signalled by Hedley J is unlikely to affect
many orders. A recent national survey, ‘Understanding Society’, puts the
proportion of equal shared care at 3.1% of the total.”
LJ Bick:
[86] “I accept, of course, that the decision in Payne v Payne is binding on this
court, as it is on all courts apart from the Supreme Court, but it is binding in the
true sense only for its ratio decidendi. Nonetheless, I would also accept that where
this court gives guidance on the proper approach to take in resolving any
particular kind of dispute, judges at all levels must pay heed to that guidance and
depart from it only after careful deliberation and when it is clear that the
particular circumstances of the case require them to do so in order to give effect to
fundamental principles. I am conscious that any views I express on this subject will
be seen as coming from one who has little familiarity with family law and practice.
Nonetheless, having considered Payne v Payne itself and the authorities in which it
has been discussed, I cannot help thinking that the controversy which now
surrounds it is the result of a failure to distinguish clearly between legal principle
and guidance. In my view Wilson LJ was, with respect, quite right to warn against
endorsing a parody of the decision. As I read it, the only principle of law
enunciated in Payne v Payne is that the welfare of the child is paramount; all the
rest is guidance. Such difficulty as has arisen is the result of treating that guidance
as if it contained principles of law from which no departure is permitted. Guidance
of the kind provided in Payne v Payne is, of course, very valuable both in ensuring
that judges identify what are likely to be the most important factors to be taken into
account and the weight that should generally be attached to them. It also plays a
valuable role in promoting consistency in decision-making. However, the
circumstances in which these difficult decisions have to be made vary infinitely and
the judge in each case must be free to weigh up the individual factors and make
whatever decision he or she considers to be in the best interests of the child. As
Hedley J said in Re Y (Leave to Remove from Jurisdiction), the welfare of the child
overbears all other considerations, however powerful and reasonable they may be.
I do not think that the court in Payne v Payne intended to suggest otherwise.”
Black LJ:
[141] “The first point that is quite clear is that, as I have said already, the principle
– the only authentic principle – that runs through the entire line of relocation
authorities is that the welfare of the child is the court’s paramount consideration.
Everything that is considered by the court in reaching its determination is put into
the balance with a view to measuring its impact on the child.
[142] Whilst this is the only truly inescapable principle in the jurisprudence, that
does not mean that everything else – the valuable guidance – can be ignored. It
must be heeded for all the reasons that Moore Bick LJ gives but as guidance not as
rigid principle or so as to dictate a particular outcome in a sphere of law where
the facts of individual cases are so infinitely variable.
[143] Furthermore, the effect of the guidance must not be overstated. Even where
the case concerns a true primary carer, there is no presumption that the
reasonable relocation plans of that carer will be facilitated unless there is some
compelling reason to the contrary, nor any similar presumption however it may be
expressed. Thorpe LJ said so in terms in Payne v Payne and it is not appropriate,
therefore, to isolate other sentences from his judgment, such as the final sentence
of para [26] (‘Therefore her application to relocate will be granted unless the
court concludes that it is incompatible with the welfare of the children’) for reelevation to a status akin to that of a determinative presumption. It is doubly
inappropriate when one bears in mind that the judgments in Payne v Payne must
be read as a whole, with proper weight given to what the then President said. She
said that she wished to reformulate the principles since they may have been
expressed from time to time in too rigid terms with the word ‘presumption’ overemphasising one element of the approach (para [82]) whereas the criteria in s 1 of
the CA 1989 govern the application (para [83]) and there is no presumption in
favour of the applicant (para [84]). Dame Elizabeth referred, of course, to the
effect on the parent with residence (paras [83] and [84]) but she also stressed that
the relationship with the other parent is highly relevant and that there are many
other factors which may arise in an individual case (para [84]). I detect in her
discussion of the factors and in her summary at para [85] no weighting in favour
of any particular factor. She said that the reasonable proposals of the parent with
a residence order wishing to live abroad carry ‘great weight’ whereas the effect on
the child of denying contact with the other parent is ‘very important’ but I do not
infer from that phraseology any loading in favour of the reasonable proposals as
opposed to the effect of the loss of contact.
[144] Payne v Payne therefore identifies a number of factors which will or may be
relevant in a relocation case, explains their importance to the welfare of the child,
and suggests helpful disciplines to ensure that the proper matters are considered in
reaching a decision but it does not dictate the outcome of a case. I do not see
Hedley J’s decision in Re Y (Leave to Remove from Jurisdiction) as representative
of a different line of authority from Payne v Payne, applicable where the child’s
care is shared between the parents as opposed to undertaken by one primary
carer; I see it as a decision within the framework of which Payne v Payne is part.
It exemplifies how the weight attached to the relevant factors alters depending
upon the facts of the case.
[145] Accordingly, I would not expect to find cases bogged down with arguments
as to whether the time spent with each of the parents or other aspects of the care
arrangements are such as to make the case ‘a Payne case’ or ‘a Re Y case’, nor
would I expect preliminary skirmishes over the label to be applied to the child’s
arrangements with a view to a parent having a shared residence order in his or her
armoury for deployment in the event of a relocation application. The ways in which
parents provide for the care of their children are, and should be, infinitely varied.
In the best of cases they are flexible and responsive to the needs of the children
over time. When a relocation application falls to be determined, all of the facts
need to be considered.
Re F (A Child) subnom Re F (A Child) (Permission to relocate) (2012) [2012]EWCA Civ
1364
•
Despite the attraction – apparently there are not separate ‘guidelines’
“There is another lesson to be learnt from this case. Adopting conventional
terminology, this was neither a ‘primary carer’ nor a ‘shared care’ case. In other
words, and like a number of other international relocation cases, it did not fall
comfortably within the existing taxonomy. This is hardly surprising. As Moore-Bick
LJ said in K v K, “the circumstances in which these difficult decisions have to be
made vary infinitely.” This is not, I emphasise, a call for an elaboration of the
taxonomy. Quite the contrary. The last thing that this very difficult area of family law
requires is a satellite jurisprudence generating an ever-more detailed classification of
supposedly different types of relocation case. Any move in that direction is, in my
judgment, to be firmly resisted. But so too advocates and judges must resist the
temptation to try and force the facts of the particular case with which they are
concerned within some forensic straightjacket. Asking whether a case is a “Payne
type case”, or a “K v K type case” or a “Re Y type case”, when in truth it may be
none of them, is simply a recipe for unnecessary and inappropriate forensic dispute or
worse. It is to be avoided.
61. The focus from beginning to end must be on the child‟s best interests. The child‟s
welfare is paramount. Every case must be determined having regard to the „welfare
checklist‟, though of course also having regard, where relevant and helpful, to such
guidance as may have been given by this court.”
Re W (Children) (2008), [2008] EWCA Civ 538 the Court of Appeal (on the 20th May
2008)
•
•
Should the hearing be heard at the same time as any application for financial remedy?
Otherwise, in the event of financial arguments ensure the Court has full information
The Court of Appeal
Thorpe, LJ:
“[1] The parties to this appeal are Swedish nationals who have lived in London for
almost 15 years. They are in their mid to late forties and are extremely talented.
The father is an investment banker working in partnership with two others. The
mother is a qualified accountant who has not worked outside the home since the
birth of her children. Those children are at heart of this case. They are
respectively, J, a girl, born on the 17 March 1993, A, a boy, born on 18 October
1994 and, C, a girl, born on the 21 July 1996.
[2] The children are as talented as their parents and their parents are justly proud
of them and of their considerable achievements at school. The three schools that
they attend are independent London day schools of the highest repute. The cost of
their private education, including extras, amounts to some £45,000 a year.
[3] The family lived together in a spacious house in Golders Green until the
father’s departure in February 2006.
[4] The breakdown of the marriage has been particularly acrimonious. The wife
felt betrayed by the husband’s departure exacerbated by the surrounding
circumstances. In July 2006 she petitioned for divorce and applied for financial
relief. The resulting financial proceedings were also bitter, a bitterness
exacerbated by the husband’s failure to make candid disclosure of his financial
circumstances.
[5] Post separation contact between the father and the three children took place on
an ad hoc basis until April 2007 when a more formal regime was substituted.
[6] On 30 May 2007 the mother issued an application to remove the children
permanently to Sweden.
[11] It is to me obvious, certainly with the benefit of hindsight, that these separate
but closely interlinked applications required to be heard together by an
experienced specialist judge, either a judge of the Division or a deputy. If for any
reason the applications could not be heard together then as a poor second best the
financial application needed to be determined first. Its determination would enable
the rival contentions on finance in the context of relocation to be evaluated in the
light of the mother’s achieved entitlement rather than on the basis of speculation as
to what that entitlement might be. Thus when the s 13 application was listed for
hearing before His Honour Judge Richards in the Principal Registry on the 21
January 2008 in advance of an anticipated hearing of the application for ancillary
relief in the Watford County Court in March 2008 unnecessary difficulties were
immediately imported.
[46] There is simply no evidential foundation for the judge’s findings of
‘acceptable’ and ‘satisfactory’. All he had was the 11 pages to which I have
referred. An analysis of those pages shows that with £610,000 to spend the mother
and children would be forced to downsize and downgrade to a property that could
only be categorised as unacceptable and unsatisfactory given the standard to
which they were accustomed and the standard that would be commensurate with
the schools that the children would continue to attend.
[47] I have considerable sympathy for the judge. His unsustainable conclusion is
the product of a radical shift in the father’s case reserved for his oral evidence and
only half put to the Cafcass officer. Had he from his first statement accepted that a
sale of the family home was inevitable and the likely consequence was that the
mother and children would have only some £610,000 with which to rehouse the
consequential issues would have been fully and properly explored and the judge
would not, I think, have reached the conclusion which he did.
[48] However, as it is the judge has reached his welfare conclusion on an
unsustainable basis. The reality is that financial considerations required a choice
between a smaller and less central property in the northern suburbs, bearing no
comparison to the home on which the children and the Cafcass officer set such
store and a house comparable in quality to the family home which it was common
ground could be purchased in a Swedish country town for approximately £400,000.
Furthermore the London housing fund available to the mother contained the
father’s Mesher investment of about £150,000. If the mother relocated to Sweden
not only would she be able to rehouse comfortably with her own share of
approximately £440,000 but the father would have immediately released to him his
share of approximately £150,000.
[49] Miss Ramsahoye’s final submission was that the judge had reached an
erroneous conclusion when he held that the children’s relationship with their
father could not equally well be maintained under the contact proposals advanced
by her client. She submitted that the judge had focused exclusively on the problems
of the alternate weekend contact in Stockholm during school holidays and had
effectively ignored the school holidays and half terms which would be equally
shared and which would give the father approximately 7 1/2 weeks of staying
contact in each academic year.
[50] I found this submission quite unpersuasive. The judge’s conclusions on this
issue were clearly open to him on the evidence.
[51] The judge’s erroneous conclusion as to the consequences for the mother and
children of the inevitable loss of the family home is of a much greater magnitude
than any error in weighing the wishes and feelings of the children. The exercise of
a judicial discretion that underweighs a relevant factor may nevertheless be upheld
on appeal. A factual finding unsupported or contradicted by evidence will
generally result in a successful appeal, certainly where the factual finding is
clearly so material to the judge’s conclusion.
[52] Outcomes in relocation cases are always fact dependent and the present case
is no exception. Here I stress only the fact that all family members are Swedish
nationals and their habitual residence here is the consequence of the attraction of
the financial market in which the father trades. I would not only allow the appeal
but grant the permission which the judge refused. That is the principled
consequence of the conclusion that mother and children could not be rehoused to
an acceptable standard within the available housing fund.
[53] At the conclusion of the hearing of 23 April we simply reserved our judgments
and did not invite submissions on how the relocation of the children should be
managed. We will invite written submissions on implementation and on costs in the
expectation that it will not be necessary for the parties to be represented when our
judgments are handed down.”
RE (1) SH (2) (3) RH (2012)[2012] NIFam 2
•
Just when you thought you were clear about at least one thing in Leave to
Remove cases i.e. that they should not be with the aim of reducing the other
parent’s contact to the child - a wish to reduce constant litigation is considered
legitimate
It was clear that each of the parties loved K, but that everything to do with her upbringing
which could possibly be disputed had been disputed. Matters that ought to have been
discussed and agreed had become fuel for the destructive fire which had burned with
undiminished intensity for over two years. If K remained in Northern Ireland, there was
no prospect of improved relations between the adults. K would be relentlessly subjected
to an emotional tug-of war, which was likely to become increasingly injurious. M was
highly educated and was plainly unhappy with her straightened circumstances. She was
clearly suffering from low mood caused, in part, by the incessant stream of court cases.
She was psychologically beaten down by the relentless involvement in disputes with F
and G. Her state of mind could not be of benefit to K, who might start to feel burdened by
M's unhappiness and sense of defeat
The court was satisfied that K's welfare would be best served by having the benefit of a
materially comfortable existence in Australia, with a mother who felt fulfilled by her
work and enlivened by the lack of ongoing disputes, and with the compensatory benefit of
contact with her wider maternal family. She deserved a happy, carefree life without
conflicting messages and ongoing family battles.
Child’s wishes and feelings
In re M v. M (Removal from the jurisdiction) [1993] 1 FCR :
Mr Justice Hollis found that the Judge at first instance “did no more than pay lip service to
the views of these two children. They are said to be articulate and intelligent, and they are of
an age when considerable weight should be given to their views’ in respect of an 11 year old
and a 10 year old child.”
What is the update in respect of this area of law?
• The only principle is that the child’s welfare is paramount;
• The guidelines in Payne v Payne apply to cases where there is a residence order or a
sole carer;
• The guidelines do not apply to shared residence cases; but
• It is unattractive for the legal profession to distinguish into the different types of
cases.
Costs
‘Put your money where your mouth is…’
• Fact-finding hearings
• Schedule One
• Enforcement
Civil Procedure Rules 1998
Court’s discretion and circumstances to be taken into account when exercising its
discretion as to costs
44.3 (1) The court has discretion as to
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.
(2) If the court decides to make an order about costs
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of
the successful party; but
(b) the court may make a different order.
(3) In deciding what order (if any) to make about costs, the court must have regard to all
the circumstances, including
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly
successful; and
(c) any payment into court or admissible offer to settle made by a party which is
drawn to the courts attention (whether or not made in accordance with Part 36).
Family Procedure Rules 2010 (FPR), Part 28
Costs
28.1. The court may at any time make such order as to costs as it thinks just.
General principles
• General rule in civil proceedings does not apply i.e. that costs follow the event does
not apply (Family Proceedings (Miscellaneous Amendments) Rules 1999);
•
However, the Court may at any time make such order as it thinks just;
Re T (Order for Costs) [2005] EWCA Civ 311
M appealed against an order that she pay the costs of four hearings incurred by the
respondent father (F) in contact proceedings about their son (J). The proceedings began with
an application by F for contact with J and concluded with a residence order in F's favour. The
relevant four hearings were fact-finding hearings by the judge in relation to allegations by M
of domestic violence, sexual abuse of J, and the failure of M to honour agreed contact
arrangements. The hearings all found in favour of F. Accordingly the judge held that M
should pay F's costs of those four hearings on the basis that her continuation and conduct of
the litigation had been unreasonable. M argued that her stance had been dictated by her
personality and that she should not be penalised as she had not been wilfully unreasonable. F
alleged that M had produced false evidence in relation to the allegations of sexual abuse and
that he had been obliged to litigate in order to restore contact with J.
[36] The principles, which fall to be applied, are not, we think, in dispute. The
judge summarised them succinctly in the following way:
“2.1 The CPR apply. Under normal circumstances, according to r 44.3(2) (a),
the general rule is that costs should follow the event, although the court can make
a different order (r 44.3(2)(b)).
2.2 However, this general rule does not apply to family proceedings (Family
Proceedings (Miscellaneous Amendments) Rules 1999).
2.3 It is suggested that even in family proceedings, the general rule is probably
the starting point but can more easily be displaced ( Gojkovic v Gojkovic (No 2)
[1992] Fam 40).
2.4 In cases involving children in particular, costs awarded against one parent or
another are exceptional since the court is anxious to avoid the situation where a
parent may feel “punished” by the other parent which will reduce co-operation
between them. This will only impinge ultimately on the welfare of the child or the
children concerned ( London Borough of Sutton v Davis (Costs) (No 2) [1994] 2
FLR 569; Re M (Local Authority’s Costs) [1995] 1 FLR 533).
2.5 The conduct of the parties is in reality the major consideration when deciding
whether or not an exceptional order for costs should be made. It should only be
made if the penalised party has been unreasonable in his or her conduct. Moreover
the ‘unreasonableness’ must relate to the conduct of the litigation rather than the
welfare of the child ( R v R (Costs: Child Case) [1997] 2 FLR 95).
2.6 One has to be very careful in this distinction when, as in the case of (the
mother), the apparent unreasonableness is as a result of the personality of the
relevant party. In such circumstances, there is often an overlap of that party’s
conduct of the litigation and the conduct relating to the welfare of the child.
2.7 At the beginning of my involvement (the father) was applying for contact in
relation to A as well as J. His welfare has also been a concern from time to time
throughout. However, the costs in dispute have been incurred in relation to J’s
welfare alone.’
[48] In our judgment, the two questions which arise are (1) was the judge right in
her assessment that the mother’s conduct in relation to the litigation was
unreasonable? (2) If the answer to (1) is ‘yes’, was it a proper exercise of her
discretion in all the circumstances of the case, and bearing in mind the exceptional
nature of costs orders, to make orders for costs against her?
[49] We have come to the conclusion that the judge’s exercise of discretion on the
facts of this case
[50] We recognise that irrational behaviour is commonplace in complex contact
disputes, and that such behaviour may well be exacerbated by the personality of
the individual parent. There is, however, in our judgment, a limit to which
allowance can be made for a parent who deliberately and unreasonably obstructs
contact by the other parent in circumstances where, on any objective analysis,
contact is in the interests of the child and should take place. Of course there is a
whole range of cases in which opposition to contact is reasonable. The classic
example is the parent who has been traumatised by domestic violence, or where the
parent seeking contact has been violent to the child. Equally, we accept, there are
many cases in which there is a genuine dispute over the amount of contact, the
suitability of holidays and overnight stays and so on.
[51] It is for this reason that the judge’s findings of fact are so important. Where a
judge, as here, carefully investigates the disputed areas of fact which have given
rise to a parent’s objections to contact, and where the judge, as here, has found in
terms that the child enjoys a good relationship with the non-resident parent; that
there is no reason for the resident parent to have any concerns; and that there is
no reason why contact should not take place, a reasonable parent, even if still
anxious, has no proper grounds for failing to implement the order. If, in these
circumstances, the resident parent unreasonably fails to implement the order or an
agreement as to contact, and if the matter has to return to court, it will be open to
the court to find that that parent is acting unreasonably.
[52] In the instant case, the parties had reached an agreement in October 2002.
There was manifestly no reason why contact should not take place in accordance
with that agreement. The mother resiled from it for no good reason. She was, at the
time, legally represented and plainly had access to good advice. The judge
investigated the matter carefully and found that there was no good reason for her
change of mind. In our judgment, she cannot in these circumstances rely on her
own irrational anxieties to bring her conduct within the reasonable band. Her
conduct was unreasonable, and it led to unnecessary litigation.
[53] The same, in our judgment, applies to the allegations of sexual abuse. The
mother had only days before expressed her wish to move forward. Her
misinterpretation of what J may or may not have said should not have led to the
suspension of contact and the further intervention of the court. It is patently clear
that J had not been sexually abused by his father, and the judge found that the
mother was unreasonable ‘in her easy acceptance of the possibility that the father
had abused J’. That was a finding, in our judgment, which the judge was entitled to
make. The mother and the maternal grandmother had misinterpreted innocent
remarks made by J and given them a sinister interpretation that was unreasonable.
The fact that the mother made and persisted in the allegations to a hearing may
well in part reflect her anxious personality, but does not make it reasonable for her
to have done so.
[54] In our judgment, the father was right to restrict his claim to the three hearings
he identified. His approach, in our view, illustrates neatly the divide between
legitimate litigation over reasonable disagreements, and irrational conduct with
prolongs unnecessary litigation.
[55] Ultimately, the judge was exercising a judicial discretion. Her management of
the case had been impeccable. In our judgment, she was entitled to make the
orders for costs she did, and right not to assess them summarily. Quantum is
ultimately a matter of assessment for the costs judge. We also do not think that,
having properly set out the principles to be applied, she can be criticised for
introducing in that context the concept of fairness in all the circumstances, or for
stating that it would be ‘an affront to justice to expect the father to pay for the costs
of defending himself’ against the wholly unwarranted allegations of sexual abuse
which, on the judge’s analysis, should never have been brought. The appeal must
accordingly be dismissed.
[56] We do not think that the orders for costs which we have upheld in the instant
case are either likely to or should deter a resident parent from advancing a
reasonable opposition to contact which is genuinely based on a proper perception
of the child’s interests. But those who unreasonably frustrate contact need to be
aware that the court has the power to make costs orders in appropriate cases, and
that the consequences of such unreasonable behaviour may well be an order for
costs made against the resident parent who has behaved unreasonably.”
The classic case for costs
M v H (Costs: Residence Proceedings) [2000] 1 F.L.R. 394; [2000] Fam. Law 313
F agreed that his aim of shared residence was unrealistic during mediation over contact to M
and F's two children. As a result, M gained residence with alternate weekend contact,
overnight contact on Tuesdays, and staying contact during school holidays being given to F.
Subsequently, F sought contact every weekend, and M suggested replacing the Tuesday
contact with Sunday contact on those weekends when F did not have contact. F then
announced that the children should live with him and refused mediation other than through
lawyers, unless M first agreed to share residence, which M refused. F, who had significantly
greater assets than M, commenced residence and contact proceedings. M represented herself
initially and later took out a mortgage to cover her legal fees. The welfare office reported that
the children, probably following F's lead, had expressed a wish for shared residence. F
strongly criticised M's ability as a mother, but later acknowledged that she was as good a
parent as he was and withdrew the residence proceedings. M applied for costs on the ground
of F's unreasonable conduct.
Held, granting the application and awarding M 75 per cent of her costs, that the bulk of the
costs had been incurred as the result of F's failed residence application, which should never
have been brought. F's conduct and allegations against M, along with his improper
encouragement of the children to further his desire for shared residence, justified the making
of the order. Further, he had continued with this course of action knowing the effect that the
costs would have on M and had threatened the residence application as a means of securing a
compromise on the contact issue by oppression.
Costs and fact-finding hearings
J (Children) 2009 EWCA Civ 1350
•
•
•
Costs ordered after a bespoke fact-finding hearing where mother was successful
in establishing the bulk of her allegations;
Note – mother did not establish all of her findings and did not have all of her
costs paid;
However, mother established that father’s outright denial of being anything
other than a loving father who was having false allegations of domestic violence
raised was false;
Lord Justice Wilson:
“1. This appeal raises a question about the proper approach of the court to an
application for costs by one parent against the other at the end of a bespoke factfinding hearing within contact proceedings, at which potentially significant
allegations are made by one parent against the other, are denied by the other but are
found proved.
17. In my view the enquiry necessary to a valid exercise of the court’s discretion in
relation to the costs incurred before the district judge should start with an
acknowledgment that the mother’s allegations were allegations of violence of some
seriousness both towards herself and, in particular, that they included allegations of
limited violence even towards R, at age two, and towards the mother in the presence
of one or other of the children, indeed in one case, of placing even E, a baby, in some
danger. This was not a borderline case for the setting up of a fact-finding hearing: it
was -- as it would now be considered -- “necessary” to set it up, within the meaning
of paragraph 13 of the President’s Practice Direction on “Residence and Contact
Orders: Domestic Violence and Harm”, 14 January 2009, although of course it was
not in force -- nor was its predecessor -- at the time when this fact-finding hearing
was set up. With respect, I disagree with the circuit judge’s refusal to accept what she
called a “compartmentalised approach”. The order for a bespoke fact-finding
hearing was surely to consign the determination of the mother’s allegations into a
separate compartment of the court’s determination of the father’s application for an
order for contact. It went almost without saying, although the circuit judge chose to
say it, that the optimum outcome of the contact application could be determined only
by reference to the findings made at the fact-finding hearing; but the effect of the
direction for a separate fact-finding hearing was that the costs incurred by the mother
in relation to that hearing can confidently be seen to be wholly referable to her
allegations against the father. There was, in that sense, a ring fence around that
hearing and thus around the costs referable to it. Those costs did not relate to the
paradigm situation to which the general proposition in favour of no order as to costs
applies.
18. I accept that the father’s stance at the fact-finding hearing was not “irrational”.
Such is a point of distinction between the present case and that of Re T; but it would
be wrong to consider that the discretion in relation to costs is so fettered that an
order can be made only against a party whose conduct has been irrational. Such was
an adjective no more than apt for the description of the mother’s conduct in Re T. Nor
do I regard the circuit judge’s defence of the district judge’s order as fortified by her
observation that the district judge did not suggest that the father was “lying
throughout the whole of his evidence”. Of course he was not lying throughout the
whole of it: he had made admissions in his statement and in cross-examination he
made further admissions. As it happens, I find it hard to conceive that, in respect of
the nine allegations which were established in the teeth of his denials, it could
reasonably be said that the latter were the product of mistake or lapse of memory on
his part. I see no basis for Miss Hildyard’s submission this afternoon that it is
unreasonable to expect the father to have admitted the allegations which he chose to
deny. But the district judge saw no reason to analyse what lay behind the father’s
false denials of those nine allegations; and I do not consider that a proper exercise of
the court’s discretion is dependent upon such an analysis.
19. I am well aware that, in most disputed cases in relation to children, whether in
private or in public law, parties justify their proposals for the future arrangements for
the child by reference, at any rate in part, to past events, of which another party or
other parties will often present a different version. Thus, to a greater or lesser extent,
issues of historical fact arise in probably the majority of these proceedings. I would
be concerned if our exercise of discretion in relation to the mother’s costs in this case
today were to be taken as an indication that it was appropriate in the vast run of these
cases to make an order for costs in whole or in part by reference to the court’s
determination of issues of historical fact. In my view, however, the mother’s costs of
the hearing before the district judge fell into a separate and unusual category. The
hearing was devoted exclusively to the court’s consideration of serious and relevant
allegations against the father of what can only be described as misconduct on his
part. Over two thirds of the mother’s allegations were true. Less than one third of
them were not established yet were not found to be untrue. Of the true allegations,
nine had been falsely denied by the father; and all but one of the remainder had been
admitted by him only in part. I cannot accept Miss Hildyard’s analysis that this case
is an example of what she calls the “run of the mill” fact-finding enquiry in which the
mother will exaggerate, and the father will minimise, almost, so she implies, in equal
measure. Where, asks Miss Hildyard rhetorically, do you draw the line between those
cases to which the general proposition against an order for costs applies and those in
which an order for costs is appropriate? But under our system, even in this court, we
do not have to draw the line. If we consider that we can confidently do so, we may
well consider it fruitful to do so; but it is often unwise to do so. We have only to
determine whether the case before us falls on one or other side of the line.
20. This case is in my judgment one in which a proper exercise of discretion on the
part of the district judge did call for an order for costs to be made against the father.
In the light however of the allegations which the mother undertook to establish but
failed to establish, and of the limited admissions made by the father prior to the
hearing, my view is that he should have been ordered to pay only two thirds of the
mother’s costs of and incidental to the fact-finding hearing. It follows that the
mother’s appeal to the circuit judge should have prevailed. We should hear argument
about whether the father should pay the mother’s costs of that appeal.”
Re T (Costs: Care Proceedings: Serious Allegation Not Proved) [2012] UKSC 36
•
•
•
Supreme Court
Public law case
Local Authority did not have to pay interveners costs after they failed to establish any
findings after a fact-finding hearing
•
However, there appears to be endorsement of costs after a fact-finding in private law
proceedings.
Lord Phillips of Worth Matravers:
[1] It is rare for the Supreme Court to entertain an appeal that relates exclusively
to costs, but this appeal raises an important issue of principle in relation to the
liability of a local authority to pay the costs of a party to care proceedings.
[2] The proceedings related to two children, whose parents were separated. The
children made allegations of sexual abuse by their father and six other men in
which the father’s parents (the grandparents) had colluded. These allegations were
included by the appellant (the council) in the schedule of matters relied upon in the
care proceedings as meeting the threshold criteria for a care order under s 31(2)
of the Children Act 1989. The grandparents were joined as interveners, as were
five of the six men. The judge conducted a discrete fact-finding hearing which
occupied a total of 5 1/2 weeks between February and December 2009. The
lengthy findings that he then made exonerated the grandparents and five of the
other six interveners.
[42] In the context of care proceedings, it is not right to treat a local authority as
in the same position as a civil litigant who raises an issue that is ultimately
determined against him. The Children Act 1989 imposes duties on the local
authority in respect of the care of children. If the local authority receives
information that a child has been subjected to or is likely to be subjected to serious
harm it has a duty to investigate the report and, where there are reasonable
grounds for believing that it may be well founded, to instigate care proceedings. In
this respect the role of a local authority has much in common with the role of a
prosecuting authority in criminal proceedings. It is for the court, and not the local
authority, to decide whether the allegations are well founded. It is a serious
misfortune to be the subject of unjustified allegations in relation to misconduct to a
child, but where it is reasonable that these should be investigated by a court,
justice does not demand that the local authority responsible for placing the
allegations before the court should ultimately be responsible for the legal costs of
the person against whom the allegations are made.
[43] Since the Children Act came into force, care proceedings have proceeded on
the basis that costs will not be awarded against local authorities where no
criticism can be made of the manner in which they have performed their duties
under the Act. Wilson LJ in Re J (Costs of Fact-Finding Hearing) at para [19]
disclaimed any suggestion that it was appropriate ‘in the vast run of these cases to
make an order for costs in whole or in part by reference to the court’s
determination of issues of historical fact’. But, as I have indicated, there is no valid
basis for restricting his approach in that case to findings in a split hearing. The
principle that he applied would open the door to successful costs applications
against local authorities in respect of many determinations of issues of historical
fact. The effect on the resources of local authorities, and the uses to which those
resources are put, would be significant.
[44] For these reasons we have concluded that the general practice of not
awarding costs against a party, including a local authority, in the absence of
reprehensible behaviour or an unreasonable stance, is one that accords with the
ends of justice and which should not be subject to an exception in the case of split
hearings. His Honour Judge Dowse’s costs order was founded on this practice. It
was sound in principle and should not have been reversed by the Court of Appeal.
[45] Accordingly we allow this appeal and restore His Honour Judge Dowse’s
order, on the basis that it shall not be relied upon to deprive the grandparents of
the costs to which the Court of Appeal held that they were entitled.”
Costs order flowing from unsubstantiated factual allegations where proceedings were
withdrawn
R & another v A [2011] EWHC 1158
Sir Nicholas Wall P:
“The Facts
4. I am dealing with a girl whom I will identify only as K who will be four in the
summer of his year. Her mother, sadly, is dead. The applicants are her mother's halfsister and the latter's husband. The respondent is her father.
5. The family dynamic is extremely complicated, but for present purposes can be
expressed summarily in the following way. It is a sad fact that K's maternal family
(including K herself, her mother and the female applicant) suffer from a genetic (and
in combination with other ailments sometimes sadly fatal) heart condition known as
hypertrophic
cardiomyopathy
(HMOC).
6. The respondent is, and K's mother was Nigerian. K had an older full sister L, who
was born in 1990, and who came to England to study. She, too, suffered from HMOC.
She died in England in November 2007, and was subsequently buried in London.
7. At the beginning of October 2010, K and her mother left Nigeria to go to Los
Angeles where the latter had enrolled on a jewellery design course. Sadly K's mother
died in Los Angeles on 16 October 2010. The respondent thereupon made
arrangements for her to be buried next to L in London, and for K to stay for a short
period with another of the mother's sisters and the latter's husband (Dr and Mrs. A),
who live in the North of England and who were, for a short time, respondents to these
proceedings.
The proceedings
8. On 13 January 2011, the applicants initiated these proceedings initially by way of
Form C100 in the Lambeth County Court. They sought defined contact, a residence
order, a prohibited steps order and leave to remove K from the jurisdiction. Their
case was that it was K's mother's dying wish that K should live with them. According
to the female applicant's first affidavit she has dual citizenship (Nigerian and British);
was born in Nigeria and, with her husband, owns homes in Kenya and the United
Kingdom, where they spend their child's school holidays.
9. The supplemental information form C1A makes a number of unpleasant allegations
against the respondent. In their form C2, which is dated 6 January 2011, they apply
for leave to commence proceedings under the Children Act 1989.
Costs
17. In my judgment the applicants must pay the respondent's costs of the proceedings.
Much learning is on display in the written submissions, but the point is ultimately one
which has been left to the discretion of the court - see FPR 2010 rule 28.1. In these
circumstances I do not propose to examine the niceties of the disapplication of the
conventional starting point under CPR in family proceedings. I entirely accept that it
is unusual to make an order for costs in family proceedings relating to children.
However, I have a broad discretion under FPR 2010 rule 28.1 to make such order as
I think "just", and in my view it would be just to order the applicants to pay the
respondent's costs of the proceedings.
18. In my judgment, the manner in which the applicants have advanced their claim
either amounts to "litigation conduct" within the authorities or provides in any event
a basis upon which it is "just" to order them to pay the respondent's costs. My reasons
for forming this view are as set out in the following paragraphs.
19. This is a tragic case, and having read the documents I am left with the strong
impression that the applicants have sought to further their case by making a number
of highly unpleasant and irrelevant allegations about the respondent, which he had
been obliged to defend, but which the applicants have then not brought to the court to
be tested.
20. I have in mind, simply by way of example, the allegations contained in the Form
C1A – the bulk of which must, on any view, be hearsay. Equally, as a Muslim, the
respondent is entitled to have more than one wife, and it is disingenuous of the
applicants to describe the father as a polygamist. There are other examples.
21. The matter does not rest there, however, since the respondent is accused of being
a neglectful father who has failed in his obligations to both K and her mother. In my
judgment the respondent had no alternative but to meet those allegations head on,
which he does in his long affidavit sworn on 7 March 2011. Given that he had lost his
wife, the suggestion that he would abandon K to his "resentful bigamously married
wives" (an assertion for which there is no supporting evidence) must be particularly
hurtful.
22. Equally, given the very sad circumstances of this case, one would have expected
much more dialogue between the parties, and in particular, that the applicants would
have trod delicately, particularly after the father, in a perfectly proper exercise of
parental responsibility, placed K temporarily in England with Dr and Mrs. A after the
death of K's mother. What K's mother is alleged to have said were her final wishes
(about which there is in any event a dispute) is not necessarily what is in K's best
interests, and where a child is habitually resident in Nigeria, it is a very strong
proposition to suggest that she should make her home with third parties in Kenya.
23. The respondent deals in detail with the meeting with the applicants in Starbuck's
Coffee Shop after K's mother's funeral. There appears to be very little dispute about
what was said. The respondent explained that he wished K to live for the time being
with Dr and Mrs A (as I have already indicated, plainly an appropriate exercise of
parental responsibility) until K returned to Nigeria. He records the female applicant
expressing a preference for K to live with them in Kenya, and that he was opposed to
the idea "at every level".
24. I see no reason to doubt the respondent's parental relationship with K and the
plan which he has made for her. In my judgment, the applicants should not have
instituted these proceedings. In my judgment, much of the applicants' evidence has
little to do with the welfare of K, and amounts to little more than an attack on the
father. In my judgment, as I have already said, the respondent had no alternative but
to defend the proceedings.
25. Ms Harris makes the point, as she is entitled to, that the respondent was mistaken
in his opposition to the fact that the court has jurisdiction to entertain the applicants'
claim. That point has forensic merit, but little more. This is not, in my view, a typical
child case. It seems to me, on reading all the papers, that the applicants were able to
use the presence of K in England to make an application which they should not have
made. They have now withdrawn it, but not before the respondent has been obliged to
defend it – and himself.
26. As there has been no adjudication, it would not be proper for me to express a view
on forum conveniens. Equally, I am not minded to make a summary assessment of the
respondent's costs, If the matter cannot be agreed, the quantum of the respondent's
costs must be decided on detailed assessment by a costs judge.
27. I do not think that the solicitors' correspondence, all of which I have now read,
advances the case one way or the other.
28. I have a number of reasons for declining to make a summary assessment of the
respondent's costs. There is the size of the bill itself, which may or may not be justified
but which does not lend itself to summary assessment. I do not, for example, know the
basis upon which he seeks to make the applicants liable for the costs incurred by Dr
and Mrs. A. This, and the quantum of his reasonable costs must, as it seems to me, be
decided on a detailed assessment.
29. I will, however, make an order that the applicants pay the respondent's costs of
the applications on the standard basis to be the subject of detailed assessment in
default of agreement. For the reasons I have given, I do not think it sensible to assess
a proportion or an amount.
Costs consequences where proceedings were withdrawn at FHDRA
•
•
Costs following withdrawal of proceedings at FHDRA not supported by Holman
J in this instance.
However, Appeal Courts are reluctant to interfere with discretionary costs
orders and there was an issue of proportionality
HH v BLW [2012] EWHC 2199 (Fam)
Judgment : Mr Justice Holman:
“1. This is an application for permission to appeal to this court from a decision and
order of a district judge in the Principal Registry of the Family Decision as to costs.
2. For the purposes of this judgment and my decision today, the facts can be shortly
summarised.
3. A lady and gentleman (whom I will call the "mother" and "father") lived together
for a number of years. From their relationship they have one child, a daughter, who
was born in June 1996. Sadly, the relationship between the parents broke down and
they separated in 2001. The daughter then lived primarily with her mother, but had
regular contact with her father, including staying contact and trips abroad with him.
As I understand it, neither parent formed significant new relationships and neither
has any other children.
4. During 2010 the daughter began to experience a number of emotional and
behavioural difficulties, both at home and at school, which it is not necessary to
elaborate in this judgment. She continued to see her father, although the visits became
less frequent and of shorter duration.
5. The last time the daughter had a period of contact with her father was June 2011
when she was about to be fifteen. During September 2011, the mother telephoned the
father's mother and told her that the daughter would not be having any further
contact with the father or indeed any other members of the paternal family. That must,
of course, have caused the utmost anxiety and despair upon the part of the father.
‘14. But the district judge then continued with the following passage:
"Am I sympathetic on a human basis to any parent concerned about their child? Of
course the court is, but this is a court and it is costly to bring proceedings. This is not
a meeting house. Although [counsel for the father] said that he simply wished to come
here to establish the child's wishes and feelings, it is not appropriate to use this court
simply to do that through the means of conciliation. I appreciate the establishment of
wishes and feelings of the child is part and parcel of the process, but the father should
have stood back and asked himself whether really there was any chance at all whatever she said to the CAFCASS officer - of the court being willing to make any
order at all. I agree with [the solicitor for the mother] that this was an entirely
misconceived application where the result and conclusion was absolutely foregone.
She is nearly sixteen years of age. It would be highly unusual for the court to make an
order and the father should have thought about that…"
That passage has been the subject of considerable criticism by Miss Jane Rayson who
appears today, as she did before the district judge, on behalf of the father. I have to
say that, in my view, the criticism is justified.
15. The FHDRA was taking place within the context of the Family Proceedings Rules
and Practice Direction 12B, "The Revised Private Law Programme", which is now set
out at p.1751 and following of the Family Court Practice 2012. Paragraph 1.5 of the
Revised Programme states in terms:
"…It also retains the essential feature of the FHDRA as the forum for the parties to be
helped to reach agreement as to, and understanding of, the issues that divide them. It
recognises that, having reached agreement, parties may need assistance in putting it
into effect in a co-operative way."
Paragraph 1.7 reads:
"The revised programme is designed to assist parties to reach safe agreements where
possible, to provide a forum in which to find the best way to resolve issues in each
individual case and to promote outcomes that are sustainable, that are in the best
interests of children and that take account of their perspectives."
So the express purpose of the FHDRA under the revised private law programme is
precisely to provide "a forum" as a means "to reach understanding of issues" and for
the resolution of them. It thus strikes me as curious that the district judge chose to
say:
"…this is a court…this is not a meeting house."
It would frankly require a lexicographer to define the practical difference or
distinction between "a meeting house" and "a forum". Then the district judge said:
"…it is not appropriate to use this court simply to [establish the child's wishes and
feelings] through the means of conciliation."
I find that also difficult to understand.
16. So far as I am aware, there is no mechanism as yet whereby a parent in the
position of this father can engage the services of CAFCASS so as to ascertain and
report as to the wishes and feelings of his child, save by first taking the step of issuing
an application, within which the first significant procedural step is the FHDRA. As I
understand it, a significant purpose of a FHDRA is to get the parties together in the
"forum" or, frankly, "meeting house" together with the child, if of sufficient age, and
provide to them the services, both of an experienced CAFCASS officer and of a judge,
so as to help the parties and the child forward in the ways described in paragraphs
1.5 and 1.7 of the revised private law programme.
17. What else could this father have done? He was being denied any contact with his
child, so he had no direct line of communication with her. He was merely being told,
first, by the mother's telephone call to his mother and later, by the stark, short letters
from the mother's solicitors, that his child would not see him. It seems to me to have
been eminently reasonable and eminently appropriate that before he simply just
accepted that and, as the judge put it, "stood back", he promoted - by the only means
available to him - that some experienced objective third party (namely, the CAFCASS
officer) saw and spoke to his child and then reported. The district judge said:
"…. the father should have stood back and asked himself whether really there was any
chance at all…of the court being willing to make any order at all". "whatever she said
to the CAFCASS officer."
I, for my part, would have thought that what she was to say to the CAFCASS officer
was likely to be fundamental in this situation.
18. It is true, as the district judge was to say, that she was nearly sixteen years of age,
but the fact is that at the outset of the proceedings she was still six months short of
that age. Courts frequently utilise the opportunity in the remaining period before
some chronological cut off point to make age appropriate orders. In this very case,
for instance, although she was approaching sixteen, it may have been possible and
would have been very important to explore whether somehow contact could be reestablished in the months leading up to that age.
19. I, for my part, therefore (albeit that I have only heard argument on one side) do
not share the comment of the district judge that it "was an entirely misconceived
application" or that "the result and conclusion was absolutely foregone". On the
contrary, it seems to me that this was a perfectly reasonable and justifiable
application for this father to have made. It would, of course, rapidly have become
very unreasonable, and indeed misconceived, to proceed with it a moment beyond the
course and content of that FHDRA on 14th March 2012. If, having heard the report
from the CAFCASS officer, the father had nevertheless persisted with his application
then he would soon have been acting with folly, but he did not do so.
20. As soon as the district judge had made his judgment and ruling as to costs, Miss
Rayson asked for permission to appeal but that was refused by the district judge.
Therefore, an application for permission was made within time to this court and it is
that application which comes before me today.
21. Since this case is governed by the Family Procedure Rules 2010, the relevant rule
is rule 30.3 of those rules, although the material rule (namely 30.3(7)) is in identical
terms to rule 52.3(6) of the Civil Procedure Rules. Each of those rules provides that:
"Permission to appeal may be given only where (a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard."
It is not suggested in this case that there is some other compelling reason why the appeal
should be heard, but Miss Rayson strongly submits that the proposed appeal "would have
a real prospect of success". With that, I agree. That is far from saying that, in my view, the
proposed appeal would definitely succeed.
22. On a substantive appeal as to costs, it would be necessary to show that the judge below
had either made some significant error of law, which this judge did not do, or had reached
a decision which was plainly wrong and such that no district judge correctly directing
himself could properly have made. As is quoted in a passage in the White Book, Volume 1
at para.52.1.5:
"The general approach of appeal courts is one of reluctance to interfere with costs
orders…As is well known, orders for costs are very rarely disturbed [per Judge LJ in a
case which is then cited]."
So the hurdle on any appeal from a discretionary decision as to costs is undoubtedly a very
high one. Although I myself have identified above a number of criticisms of the approach
by, and language used by, the district judge, that is far from saying that the proposed
appeal would inevitably succeed, although I do frankly say that I cannot conceive that I
myself would have made any order as to costs if I had been hearing this matter on 14th
March 2012.
23. But the test under rule 30.3(7)(a) is of course a much lower one, namely whether the
appeal "would have a real prospect of success" and I am in no doubt that it would. That,
however, is not the end of the matter.
Re R (Costs: Contact Enforcement) [2011] EWHC 2777 (Fam)
“[35] I have formed the view that the same considerations apply in relation to an
application pursuant to s 11J. Such an application is, in effect, contempt proceedings. The
standard of proof is the criminal standard. The consequence of the court being satisfied of
a failure to comply is a quasi criminal punishment of unpaid work. Anyone faced with such
an application is entitled to be represented. If they are successful in defending that
application, they have a right to apply for costs. The court must, of course, consider the
matters set out in CPR 44.3. It becomes a discretionary exercise and the court must have
regard to the conduct of the parties. It does not need to start from a presumption of no
order as to costs.
[37] I did at first wonder if an order that he pay the costs would be unfair because the
district judge had not heard the application in full and was unable to decide where the
truth lay. But on reflection I have come to the clear view that that would be quite wrong. It
would mean that nobody would ever get a costs order if the other side abandoned the
matter at the very last minute relying on there having been no findings of fact such that the
court could not judge the matter. The district judge had made it very clear that she did not
believe the father would be able to prove his case. The fact that he abandoned his
application (albeit late) was to his credit and it definitely saved some costs, but the
majority had already been incurred. While I take it into account in his favour, it is not a
defence to the principle of an order for costs against him.
[39] Nevertheless there are, in terms of quantum, a number of factors that militate
against a full costs order in this case. I have already mentioned the point that he did
finally accept the inevitable. But I also take into account the following:
(a) it was, in my view, reasonable for him to bring his application in April 2011
and to maintain it up to the hearing before Deputy District Judge Lavelle;
(b) it was reasonable for him to have time to consider the mother’s offer dated
19 May;
(c) he was told that the costs would be likely to be near or would be £5,000.
Although Mr Ranton was cautious at the hearing and certainly reserved the
possibility of it being a higher figure, he never indicated that it could be as much
as £10,000;
(d) the district judge clearly did feel that the mother had not behaved absolutely
perfectly. I take that from p 29 of the transcript and I do not accept Mr Ranton’s
ingenious interpretation of it. The district judge says at (c):
‘It does not mean to say that I have come to the conclusion that your client has
behaved absolutely perfectly.’
Perhaps it was for that reason that the district judge decided the order should be 75%
rather than 100%, but that is not clear from her judgment:
(e) the case is suitable for a standard order not an indemnity order,
notwithstanding Mr Ranton’s letter seeking indemnity costs.
(f) it is an application relating to a child;
(g) I do take into account the personalities involved;
(h) I accept that the father was in person.
[40] The father asks me to take into account his lack of means. The mother asks me to
take into account the fact that he has paid no maintenance. In my view, neither of these
points is relevant to this question, although they may of course go to the issue of
enforcement.
[41] I take the view the father should make a contribution to the mother’s costs of the s
11J application and that I should assess it now to avoid any further dispute or the need
for an assessment. I believe the district judge considered that she was ordering 75% on
a standard basis on £5,000. I appreciate entirely that I have not done any detailed
assessment of Mr Ranton’s bill of costs, but, if a standard order is normally around
75% of the total and it is then 75% of that, which would be £2,812. Given all the matters
that I have listed above, I consider that is slightly too high. In my view, the correct
contribution is £2,500. I will hear Mr Willis on the question of time to pay. I therefore
allow the appeal and I replace it by an order that the father contribute the fixed sum of
£2,500 to the mother’s costs of the s 11J application.
Summary Assessment
The Child’s welfare is relevant but not paramount
Q v Q (Costs: Summary Assessment) [2002] 2 FLR 668
Wilson J:
“[14] A wish not to reduce the chance of adult co-operation around the future life of a child is
a consideration referable to his welfare. I do not for one moment suggest that, in reaching a
determination as to costs, the child’s welfare is the paramount consideration. The court is not
then determining a question with respect to his upbringing so s 1 of the Children Act 1989 is
not engaged. Nevertheless the child’s welfare is a factor which, with all the other relevant
factors, it is legitimate for the court to take into account.
[34] The court has always hesitated, and no doubt will always hesitate, before making a
summary assessment in a high figure at the end of protracted proceedings. The first point
is that of course a judge will be able to form a clear view as to the reasonableness of a
statement of costs less easily when it claims £336,000 than when it claims £10,000. But the
prospective payer will have an opportunity to comment on it. In this case the father’s legal
advisers have been in possession for one week of the mother’s nine-page costs statement;
and less than one hour prior to this resumed hearing as to costs Mr Mostyn has served a
detailed letter in response written by a costs draftsman. Apart from certain obviously
misconceived or trivial points, the draftsman articulates various detailed challenges which
well foreshadow the flavour, the complexity and indeed (although the parties could afford
it) the expense which would attend detailed assessment. Nevertheless I am more than
content to proceed on the assumption that some of his points might, on such examination,
be upheld as valid to some extent. Secondly, as was recognised in Newton v Newton
[1990] 1 FLR 33 at 47E, it is instructive to compare the total alleged costs of the
prospective payee with those of the prospective payer, unless there is some special feature
suggesting that the two sets of costs should be substantially different. In this case I discern
no such feature and the two total figures are within 4% of each other. Thirdly, the greater
danger of injustice to the payer arises where the court has in mind to make a summary
assessment in respect of all the payee’s costs. In that situation I have occasionally sought
to guard against it by offering the payee the option of detailed assessment on the indemnity
basis or a summary assessment in a figure slightly less than that claimed. In the present
case, however, as already explained, I do not intend to make an award to the mother in
respect of all her costs. My decision is to make a summary assessment of her costs in the
sum of £150,000 (inclusive of VAT). If hypothetically her costs were to be the subject of
detailed assessment which arrived at a total in precisely the sum of £336,000 presently
claimed, an order for payment of £150,000 would be shown to represent an award of 45%
of her costs. But even if the hypothetical detailed assessment showed my award to
represent say 50%, or indeed 40%, of them, I would consider it to be equally reasonable.
My reason for favouring a summary rather than a detailed assessment is that all my work
in the case to date has been designed to resolve to the maximum possible extent all
outstanding disputes between the parents and slowly to lead them, and the boy himself, to
consensus or at least co-operation, under my direction, in relation to contact; and that, to
adopt the word used in Leary, the aggravation of a detailed assessment of costs would run
counter to my design and indeed be unnecessary because, in this case, I am confident of
my ability to make a summary assessment which is fair to both parents.’
If you do get an order make sure you record it why:
Re G (Costs: Child Case), [1999] 2 FLR 250:
“If a parent went beyond the limit of what was reasonable to pursue the
application before the court and it was appropriate to take the unusual step of
ordering costs against that parent, it ought to be clear on the face of the transcript
– either in the judgment or preferably in the order for costs, why the court was
departing from the normal practice.”
Schedule 1 Applications
PG v TW (No 2) (Child: Financial Provision) [2012]
In the High Court of Justice
HHJ Horowitz QC (sitting as a Judge of the Family Division)
“Background History
2. Mother and father were born in Africa. She is 25 and he is 30 years old. Father is a
prominent and gifted footballer. The parties formed a relationship in 2007, the
mother coming out to England to live with him. Their daughter Z, was born in 2008 in
Africa. She is described as a planned child and in a happy feature of the case is loved
by both of them.
3. Unhappily, the parties' relationship ended in March 2009 although mother and Z
returned to their country of birth in October 2008. Mother moved in to live with her
parents who helped her in childcare. A final attempt at reconciliation failed in March
2009. She took a job to support herself in April 2009.
4. The father moved to Europe as a professional and in recent years has played in
England.
London Litigation Costs
127. The 2010 FPR modification of CPR 1998 44.3 does not apply.
128. While Mr Francis's preferred position was no order for costs, his substantive
argument was for costs against the father to be on the standard rather than indemnity
basis.
129. The essential difference from the mother's perspective, is that she is exposed to
recovery for the difference between standard costs and those actually incurred but in
reality has no exposure to any sum above assessed cost on the indemnity basis.
130. Mr Francis QC submits that I have been dealing with an extravagant claim
unreasonably pursued. He points to the initial high bid for housing provision and the
continuing high level of the claim for fitting out and budget.
131. There is some force in Mr Francis' submission, which adopts a theme repeated in
correspondence and statements from the outset on the father's behalf. But even if it
was, that is only one factor in my discretion. Mr Francis' point is substantially
dissipated by the failure of his client to put forward any reasonable counter offer at
any stage or any offer at all until a late stage.
132. In the retrospective view of the end of the case, the conduct of the litigation by
the father has been a steady abandonment of one defensive position after another. The
African proceedings were erected as a barrier until a late stage as I have described.
Resistance was announced on grounds never advanced to the conversion of the
mother's application to bring it into line with the change in the governing law. It is
hard to conceive what basis might have existed.
133. Mr TW's statement was unhelpfully late and took objection to the carer's
allowance, the entitlement to be housed away from her family and even queried
private education for his daughter.
134. His disclosure was only brought up to an acceptable standard at the hearing
itself. His offer, sent only days before the hearing, was not only as I have found
manifestly too low under all heads. It contained three restrictive provisions that not
only lacked imaginative generosity but made litigation at that late stage inevitable. I
refer to the cap on housing to 18, the claim to an occupation rent and, small but
significant, the offer of a car at the bottom of the saloon range precisely defined as
one year old.
135. In my judgment, these factors cumulatively justify an indemnity costs order.
136. I give leave to report the judgment of Theis J suitably anonymised.’
PG v TW (No 1) (Child: Financial Provision: Legal Funding) [2012] EWHC 1892 (Fam)
Interim costs payment in Schedule 1
Mrs Justice Theis:
“1. I am giving this short judgment extempore, which is not ideal. But, given the
circumstances of this case, it is the best option.
2. This application is made by the mother applicant, PG (who I shall hereafter refer
to as "the mother"), who is the mother of a child, who I shall call 'Z', born in 2008.
This application is for what is known colloquially as an A v A order for the
respondent father to fund, or contribute to, her legal costs, both historical and going
forward. The respondent is TW (and I shall refer to him hereafter as "the father").
3. The application is made in the context of an application under Schedule 1 Children
Act 1989 ("Schedule 1 Application") that has been issued by the mother. There are in
fact two applications. One was issued in May 2011 and a second in March 2012. Both
applications claim all forms of relief, both in terms of maintenance, a lump sum and
secure provision.
‘18. Taking all these matters into account, I have reached the very clear conclusion
that the court should exercise its discretion to make an A v A order. I do not find that
the mother's conduct is such that she should be precluded from having any payments
made available to her at all over and above the £35,000 that has already been made.
Whilst there may be some criticism of the way she pitches her case, and that is not
unusual in the court's experience in relation to these applications, those are matters
to be dealt with by engaging in constructive discussion about the parties' respective
position and make what are considered to be realistic proposals. That has not taken
place. It may be that the father's position is that there should be no more maintenance
paid or any other provision apart from that. His position remains entirely unclear.
19. The position taken by the father in these proceedings have increased the costs, he
has chosen to issue and continue with proceedings in Africa during the currency of
certainly one of these applications, one of which was issued before the African
proceedings. This has caused an increase in costs here, because there has been a
need to find out what has been happening in the African proceedings. He has chosen,
as I have said, to make no proposals other than those for maintenance, which of
course he is entitled to. But a court is entitled to take that into account when looking
at the picture in the round and also in exercising its discretion. It looks like (as I have
already said) he has instructed his legal team to issue two fresh procedural
applications that the court is going to need to determine, if they are proceeded with.
20. The mother needs to be in a position to pay some of her historical costs and likely
future costs to deal with the procedural applications, if they are proceeded with, and
the main hearing. Whilst the father makes no proposals for the mother's costs, he does
take a great deal of time - not only the evidence that has been filed by him, but also in
his position statement - of criticising the hours spent by the solicitors instructed by the
mother on this case. On the face of the information I have, I agree with some of those
criticisms:
(1) The number of hours. Firstly, in relation to a comparison between the
hours incurred by the father's solicitors and the hours incurred by the
mother's solicitors during the breakdown of the bills. During the first period,
the mother's solicitors incurred approximately 63 hours at senior partner or
partner level, whereas the father is said to have incurred 40 hours. At the next
stage leading up to the FDR, the figures become more stark. The mother's
team incurred 101 hours, whereas the father's team incurred 58 hours.
Secondly, the point made by Mr Francis QC is when you look at the difference
between the costs schedule that was prepared on behalf of the mother's team
on 19th February 2012 and the one that was distributed on 1st May 2012 in
relation to the estimate of a partner's hours dealing with this application the
difference is notable. The estimate was 35 hours in the estimate on 19th
February, but it is said that the actual hours incurred were 93 hours, nearly
three times the original estimate, which seems to be excessively high.
(2) The second matter is whether all of these hours needed to be incurred at
partner or senior partner level. There had been some criticism in relation to
the use of counsel, whether it has been one counsel or two counsel, but, in
fact, I do not think that criticism is necessarily sustained. If you look at the
overall figures in relation to historical costs there is very little difference
between the two sides (I think about £5,000 or £6,000 looking at the total
figure). I, of course, acknowledge that, generally speaking, those acting for the
applicant have to do a bit more of the running around in order to be able to
get the application formulated and to provide the evidential basis for the case.
But the worry in this case is that, despite having spent (as I have said) nearly
£270,000 in total, it is agreed that this is a relatively simple factual case. As I
have said, it is a staggering amount of money.
21. In reaching the figures and the decision I am going to take the costs incurred by
the father's team to date and going forward as a benchmark, but will not follow them
in a precise like for like comparison due the points that I have already made about
there being some additional work. Due to the way the figures have been presented to
me, there is going to be an element of a broad-brush approach. I think that is the only
thing this court is able to do on the information that it has. I am going to divide the
costs up into four sections.
What is the update?
• As ever, litigation conduct is the most likely cause of costs consequences;
• However, be warned in fact-finding hearings;
• Be careful in issuing cases that necessitate a factual basis being established;
• Appeal Courts are loathe to interfere with costs decisions but will do so if you fail to
record the reason behind them;
FAMILY TEAM
Brighton
Year of Call
Year of Call
James King-Smith
1980
Leo Cogin
2000
Karen McLaughlin
1982
Anita Mehta
2002
Neville Stevenson-Watt
1985
Gavin Howe
2003
Adam Smith
1987
Richard Ager
2004
Timothy Bergin
1987
Eleanor Battie
2004
Aviva Le Prevost
1990
Hala Mustafa
2004
Christopher Rice
1991
Daniel Miller
2005
Jeremy Cave
1992
Samantha Knott
2005
Nigel Taylor
1993
Matthew Heywood
2006
Luisa Morelli
1993
Charlotte John
2008
Susan Healey
1995
Bruce Tregoning
2008
Rachael Claridge
1996
Clare Ciborowska
2009
Jacqueline Roach
1996
Denise Saunders
2008
Pegah Shargy
1998
Michael Walker
2008
Camilla Wells
1998
Catriona Murdoch
2008
Jane Peckham
1999
MEMBERS OF CHAMBERS, BRIGHTON
James King-Smith
Paul Ashwell
Roger Booth
Christopher Morris-Coole
Karen McLaughlin
Neville Stevenson-Watt
Adam Smith
Timothy Bergin
Aviva Le Provost
Christopher Rice
Jules Grant
Jeremy Cave
Simon Sinnatt
Nigel Taylor
Luisa Morelli
Rowan Jenkins
Christine Henson
Susan Healey
Rachael Claridge
Jacqueline Roach
Pegah Sharghy
Camilla Wells
Ghulam Hussain
Jane Peckham
Stuart Wright
Leo Cogin
Francesca Lewington
Anita Mehta
Gavin Howe
Richard Ager
Eleanor Battie
Hala Mustafa
Daniel Miller
Samantha Knott
Matthew Heywood
Lauren Godfrey
Charlotte John
Bruce Tregoning
Clare Ciborowska
Denise Saunders
Michael Walker
Catriona Murdoch
1980
1977
1966
1974
1982
1985
1987
1987
1990
1991
1991
1992
1993
1993
1993
1994
1994
1995
1996
1996
1998
1998
1998
1999
2000
2000
2001
2002
2003
2004
2004
2004
2005
2005
2006
2007
2008
2009
2009
2008
2008
2009