K v E
| Jurisdiction | England & Wales |
| Court | Family Division |
| Neutral Citation | [2023] EWHC 1244 (Fam) |
| Year | 2023 |
2023 March 16; May 24
Practice - Order - Revocation and variation - High Court ordering mother to pay half father’s costs of successful appeal against fact-finding decision in private law children proceedings - Mother applying to vary or revoke costs order - Whether power to vary or revoke orders applying to final orders - Whether power to provide costs order not to be enforced without leave of court -
In private law proceedings under the Children Act 1989 a district judge found that the father had sexually abused his daughter on a number of occasions. Some years later a High Court judge allowed the father’s appeal and, at the remitted fact-finding hearing, another High Court judge found that the father had not abused his daughter. The High Court judge who had heard the appeal ordered the mother to pay half the father’s costs of the appeal. Nearly a year later the mother applied for that order to be rescinded or substantially varied on the basis that (a) she was financially unable to satisfy the costs order, (b) the general cost of living had risen significantly and unexpectedly since the making of that order and (c) the burden of the order was leaving her so anxious that it impacted on her life and, therefore, the care and welfare of the child. In particular, the mother contended: (i) that the court’s power under FPR r 4.1(6)F1 to “vary or revoke” an order could be exercised in respect of a final order; and (ii), alternatively, that the court should order that the costs order was not to be enforced without leave of the court.
On the application—
Held, refusing the application, (1) that on a true construction FPR r 4.1(6) gave the court the power to vary or revoke a final order; that although the circumstances in which the power to vary or revoke could be used in relation to a final order were likely to be limited, a discrete, self-contained order such as a costs order was a good example of a final order which could be varied or revoked under FPR r 4.1(6); that, although the court had a reasonably broad discretion to vary or revoke an order, that discretion was likely to be exercised only where (a) there had been fraud, (b) there had been a material change of circumstances since the order was made, (c) the facts on which the original decision was made had been misstated (innocently or otherwise), including where there had been material non-disclosure, or (d) there had been a manifest mistake on the part of the judge in formulating the order; that, further, the discretion was likely to be more sparingly exercised in relation to a final order as opposed to a procedural, interlocutory, injunctive or case management order; but that, on the facts of the present case, the mother had not established that there was a proper basis for varying or revoking the costs order (post, paras 39, 48–49).
(2) That since FPR r 4.1(4)(a) empowered the court to make any order “subject to conditions”, a court had power to order that an order for payment of a sum was not to be enforced without leave; that, although the circumstances in which such an order might be made were likely to be rare, such an order could be made against a party who was not legally aided but was nonetheless impecunious; but that, in the present case, there being no basis for a variation or revocation of the costs order, it would not be principled to “vary” it by suspending its enforcement (post, paras 44, 50).
The following cases are referred to in the judgment:
A and B (Rescission of Order: Change of Circumstances), In re
E (Children), In re
E-R (Child Arrangements Order) (No 2: Costs), In re
F (A Child) (Return Order: Power to Revoke), In re
F (Children) (Return Order: Appeal), In re
Gohil v Gohil (No 2)
L (Children) (Preliminary Finding: Power to Reverse), In re
L v L
Ladd v Marshall [
Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen
Maughan v Wilmot (No 2)
N v J (Return Order: Power to Set Aside)
Roult v North West Strategic Health Authority
Sharland v Sharland
Tibbles v SIG plc (trading as Asphaltic Roofing Supplies)
Wraith v Wraith [
The following additional cases were referred to in the skeleton arguments:
B (Minors) (Care Proceedings: Issue Estoppel), In re [
CTD (A Child), In re
D (A Child: Appeal out of Time), In re
Ellis v Scruttons Maltby Ltd [
K v P (Children Act Proceedings: Estoppel) [
Rogan v Kinnear Moodie & Co Ltd [
S v S
Z (Children) (Care Proceedings: Review of Findings) (Practice Note), In re
APPLICATION
In 2015, within proceedings under the Children Act 1989, a district judge made findings that the father, K, had sexually abused his daughter, D. On 14 May 2020 Francis J sitting in the Family Division of the High Court granted the father permission to appeal out of time and allowed the appeal against the district judge’s decision, remitting the matter for rehearing before Cobb J (In re D (A Child) (Appeal out of Time) [2020] EWHC 1167 (Fam); [
By an application dated 17 January 2023, deemed to be made pursuant to FPR r 4.1(6), the mother applied to the High Court for an order that the costs order be rescinded or substantially varied “in the light of changed factors”, in particular that: (1) she was financially unable to satisfy the costs order, given her modest income and means, and having regard to the costs which she had incurred over the lengthy proceedings; (2) the cost of living had risen significantly since the costs order was made, having an adverse impact on her and her family, which had not been foreseen at the time of the order; and (3) the child’s welfare was inextricably linked to the outcome in that the costs award would have devastating consequences, dictating the direction for the child moving forward in her life, and was rendering the mother anxious and stressed, which was having an impact on her life and her care of the child. The father opposed the application as being an impermissible appeal “by the back door”, on the basis that the mother had made clear in her original submission to Francis J that she was financially destitute and that the cost of living crisis had not fallen on the mother alone and the father was similarly affected, and would be affected by any variation or revocation of the earlier order.
The judgment is reported with permission of the judge on condition that the anonymity of the child and members of their family be strictly preserved.
The facts are stated in the judgment, post, paras 1–13.
Laura Briggs KC and Ian Black (acting pro bono and instructed directly) for the father.
Andrew Fox (acting pro bono) (instructed by
The court took time for consideration.
24 May 2023. COBB J handed down the following judgment.
Introduction1 On 14 May 2020, Francis J delivered a judgment setting out his reasons for granting a father permission to appeal out of time, giving him relief against sanctions, and allowing an appeal, in proceedings which had been issued originally under the Children Act 1989 (“CA 1989”): see In re D (A Child) (Appeal out of Time) [2020] EWHC 1167 (Fam). These proceedings concern a girl, D, who is now 12 years old.
2 Within the CA 1989 proceedings at first instance, a district judge had made a factual finding in 2015 that the father had sexually abused D on a number of occasions. Francis J concluded that “there was a serious procedural irregularity in the proceedings in the lower court” and a “serious risk” that the decision was wrong (see [2020] EWHC 1167 (Fam) at [77]). He remitted the substantive CA 1989 application to me for rehearing. He described the case as “a wholly exceptional case”; I agree. At that time of allowing the appeal, Francis J did not deal with the question of costs of the appeal as (he later observed): “so much would depend upon the findings made by the High Court Judge who was to conduct the rehearing”
3 I conducted a new fact-finding hearing over a number of days in the spring of 2021, delivering a lengthy and detailed judgment on 14 May 2021. On the evidence, I did not find that the father had sexually abused his daughter. I made a wide range of findings about both parents, notable among them is that:
“The mother allowed her pre-existing feelings of...
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial
-
S v Birmingham City Council & Ors
...the rule could be used to vary or revoke a final order also arose in Re D (Costs of Appeal: Application to Vary or Revoke Orders) [2023] EWHC 1244. In that case, after considering the authorities, the judge concluded as “I am prepared to accept that rule 4.1(6) does give the court power to ......