C v S
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Arbuthnot |
| Judgment Date | 04 April 2022 |
| Neutral Citation | [2022] EWHC 800 (Fam) |
| Docket Number | Case No: FA-2021-000195 |
| Court | Family Division |
[2022] EWHC 800 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM THE FAMILY COURT AT EAST LONDON
Order of Her Honour Judge Sapnara dated 16th July 2021
Case No. ZE19P00751
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Arbuthnot
Case No: FA-2021-000195
Represented by Mr Latham for the Appellant and Mr Herbert for the Respondent
Application
The Appellant seeks to appeal the Order of HH Judge Sapnara refusing his application for costs against the Respondent and her husband. The application is limited to the decision made by the Judge in relation to the first Respondent in which she dismissed the Appellant's application for costs on 16 th July 2021. An oral application for permission to appeal was refused by HH Judge Sapnara upon the handing down of her judgment on 16 th July 2021, but that application was renewed in the Appellant's Notice which was filed on 5 th August 2021.
The appeal came before me remotely on 2 nd February 2022 when both parties appeared and were represented. After hearing argument, I adjourned for judgment.
Grounds of Appeal
The grounds of appeal and my decision on permission to appeal are set out below:
Ground One
The Judge erred and/or was wrong to conclude that the Respondent's conduct in the relevant proceedings had been “anything other than unreasonable and/or reprehensible”.
Ground Two
The Judge was wrong to conclude that the Respondent's conduct was neither reprehensible or unreasonable on the basis that many litigants in family proceedings of this kind engage in conduct of a similar nature (ie lying in evidence, making false allegations etc).
Ground Three
The Judge erred in principle in her approach or was wrong to have considered it necessary that the Respondent's conduct be categorised as “exceptional” before any costs order should be made against her.
Ground Four
In all the circumstances, the Judge failed to give adequate weight to matters of importance and/or gave too much weight to matters which she ought not to have taken into account or ought to have attached significantly less weight to, such that she arrived at a decision which was outside the generous ambit of her discretion and/or was wrong.
Permission to Appeal
My decision giving permission to appeal was expressed in the terms set out below:
“I am conscious that HH Judge Sapnara had conduct of this case for a number of years and had produced a number of impressively detailed judgments. She had heard the parties give evidence at length and had knowledge of the issues raised. She had decided not to make a costs order against the Respondent having considered all the evidence. It would be unusual for a court would interfere with the exercise of discretion in a costs matter in those circumstances.
Having said that, and after consideration of the four grounds of appeal and the evidence, and after in particular reading the judgments of the late HH Judge Glen Brasse and those of HH Judge Sapnara, I find it is arguable that the Respondent's conduct before and during the proceedings was outside the bounds of what could be said to be reasonable etc. It is arguable that this conduct and all the circumstances led to a considerable increase in the cost to the Appellant, whether financially or indeed emotionally.
Whether a court hearing from both parties would make an order for costs is a different matter. There is a risk that no order for costs might still be made or that any order would be for a very small contribution to the Appellant's costs. The risk of that of course is that the Appellant would spend more on the appeal than he would gain on the costs. The Appellant should bear that in mind before he decides whether to proceed with this appeal. If he decides not to proceed, I will send out a longer judgment considering in detail the Respondent's conduct, that judgment would be sent to the Respondent.
I grant permission to appeal on grounds one to four and would ask the Appellant to let my clerk know whether in view of my observations above he still wishes to pursue the appeal. If he does this matter is to be listed before me inter partes for two hours early in 2022.
Before I give directions, I would ask the Appellant to let my clerk know whether he wishes to proceed with the appeal.”
The Appellant let my clerk know that despite the warning set out above he wished to pursue the appeal.
I received a number of documents which I had read before the substantive appeal. I was much assisted by the detailed, well-researched and persuasive written and oral submissions from Mr Latham for the Appellant and Mr Herbert for the Respondent.
Background and proceedings
The Appellant father and the Respondent mother are the parents of two children, A born in 2009 and B born in 2010. Their relationship broke down, with the father moving out whilst the children remained living with their mother. The Respondent has now remarried and has another child who lives with her and her husband.
A brief summary of the extensive family court proceedings conducted by the Appellant and Respondent is the following: an early dispute about the arrangements concerning the children led to an order by HH Judge Altman on 31 st January 2013 for the children to live with the Respondent mother with the Appellant father to have regular, including overnight, contact.
Contact started but was then stopped by the Respondent. After hearing evidence, an Enforcement Order had to be made by the late HH Judge Glen Brasse on 7 th January 2014. The Judge directed the Respondent to comply with the order.
On 20 th October 2014, the Respondent made an application to relocate the family to the USA. An order made by HH Judge Sapnara on 8 th April 2015 dismissed the Respondent's application.
The most recent application was the Appellant's made on 12 th April 2019. He applied for a child arrangements order for the children to live with him and spend time with the Respondent. This was contested by the Respondent and having been initially listed for a four day fact finding hearing starting on 28 th October 2019, became a ten-day hearing in front of HH Judge Sapnara that ran between 28 th October 2019 and 8 th January 2020.
A judgment was delivered on 28 th February 2020 and a welfare hearing then took place on 9 th November 2020 when the Judge granted the Appellant's application and made an immediate order for the transfer of the children's residence from the Respondent to him.
On 22 nd January 2021, the Appellant applied for an order that the Respondent and/or her husband pay some or all of his costs incurred in respect of the Respondent's unsuccessful relocation application to the USA in April 2015 and of the Appellant's successful application for a transfer of residence in 2019 to 2020. On 29 th June 2021 HH Judge Sapnara heard the application and delivered an oral judgment on 16 th July 2021 dismissing it.
In more detail
More detail is required to understand the nature of the Respondent's behaviour during these extensive proceedings.
After the parents' relationship broke down, in January 2013 HH Judge Altman decided the children should live with the Respondent but have regular contact with the Appellant including overnight. These arrangements soon went awry.
th January 2014, HH Judge Glen Brasse — contact
On 7 th January 2014 and after hearing evidence, HH Judge Glen Brasse noted that the “Respondent has not obeyed the order of HH Judge Altman by allowing staying contact to continue. It began and then she stopped it” (paras 2 and 3 B56).
The Judge made a number of critical comments about the mother's evidence: “I am driven to the conclusion that this reference [by the mother] to the Local Authority's involvement in the case was simply designed to raise the court's anxiety and concern about the care that the children were receiving with their father” (para 16 B61). The Local Authority was not involved with the children.
In relation to the mother's evidence about what A's school said about his behaviour, HH Judge Brasse said: “There were a number of reasons, when I listened to the mother's evidence, why I felt the court needed to proceed cautiously in relying on what she said” (para 8 B58).
The mother had told the court that contrary to the head teacher's report that A's behaviour was unexceptional, A's teacher, Ms D, had told her that she had considerable concern about his presentation. The Judge said “I am bound to say that I found it inherently improbable that Mr. H, who was an independent professional, would prevent a schoolteacher from reporting what, on the face of it, would be highly relevant material… On the other hand, a parent like this mother, locked in a prolonged dispute with the father, has an obvious motive for gilding the lily where a piece of evidence left in its pristine state does not support her case. I was left with the impression, therefore, that that is what may have happened here.” (para 10 B59).
The mother had said Ms D, was deeply concerned about his behaviour and emotional stability and him overreacting to things yet when the teacher was asked about this the Judge said she was reported as saying “that [A] had a lovely personality, he was helpful, kind and gentle, he had formed good relations with both his peers and other adults who work with him. There is no mention at all of him over-reacting if there was an altercation with another child or being tearful.” (para 21 B63).
HH Judge Brasse said about the mother's evidence: “she was feeding to the school her own concerns about [A's] presentation in order, plainly, to raise their level of anxiety about this child's emotional state when she reported to them that he was suffering from emotional outbursts. This is not an isolated incident of such...
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