G (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Sir Stanley Burnton |
| Judgment Date | 09 July 2013 |
| Neutral Citation | [2013] EWCA Civ 1017 |
| Docket Number | Case No: B4/2012/2886 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 July 2013 |
[2013] EWCA Civ 1017
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HHJ WADDICOR)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Mcfarlane
and
Sir Stanley Burnton
Case No: B4/2012/2886
The Appellant Father appeared in person
The Respondent Mother appeared in person via video conference
(As Approved)
This is an appeal brought by the father of two still relatively young children, C and L. C is a boy who is now aged 8 and L is a girl aged 6. The appeal relates to a decision made by HHJ Waddicor, sitting in the Brighton County Court on 18 October 2012 at the conclusion of what had become very long-running proceedings under section 8 of the Children Act 1989.
The issue before the judge for determination was stark. The father sought what would be regarded as a generous and open arrangement for contact to the children. The mother sought an order for no direct contact, and indeed the question before the judge included, certainly by the conclusion of the hearing, whether or not there should be a bar on any further applications to the court under s.91(14) of the Children Act.
In the event, having heard evidence I think over three days and having reserved judgment for a week, the judge decided very firmly, and for reasons which she set out in substantial detail in her judgment, that the mother's position was the one that represented the best interests of the children. She therefore made an order which refused direct contact between the father and the children, and imposed a s.91(14) order for a period of five years. In addition the judge went on to order that the father, who was a litigant in person before the court, should pay the mother's costs "following a detailed assessment of her costs". The mother was legally aided throughout the proceedings.
The father sought by his notice of appeal, which was issued on the 2nd November 2012, to challenge the entirety of the judge's determination. The application for permission to appeal came before Thorpe LJ on 25 April 2013, and for the reasons that he shortly sets out in his judgment of that day, Thorpe LJ felt that there was no reasonable prospect of the father's comprehensive attack on the judge's determination succeeding. He therefore refused permission to appeal generally, but did give permission to appeal solely against the costs order. Thorpe LJ, in the course of his judgment, said that such an order would be highly unusual in Children Act proceedings. Also, he noted that the mother was publicly funded and the father had apparently no, or limited, financial means. Thorpe LJ therefore questioned whether, at the very least, the order should have included a term such as "not to be enforced without leave." So this morning Sir Stanley Burnton and I have heard the father's appeal on that limited basis.
The father appears in person before us, although he tells me, and I readily accept, he has attempted to obtain legal representation, and the mother appears also in person via a remote video link.
The context in which the family court has to consider orders for costs is one which is to a degree different from that which applies in ordinary civil litigation. The family court, under the Family Procedure Rules, is exempt from Rule 44.3(2) and (3) of the Civil Procedure Rules 1998 (parts 43 and 44). So the rule that costs normally follow the event doesn't apply to family proceedings. Indeed it is out of the ordinary for a family court to make an order for one party to proceedings in relation to a child to pay the costs of the other party irrespective of the result of the proceedings. But it is established by case-law that in some cases the family court does have jurisdiction to make such an order. The leading case, despite its age, remains R v R(Costs: Child Case) [1997] 2 FLR 95. It is a Court of Appeal decision. In the judgment of Hale LJ as she then was, the relevant legal landscape is described, and the court goes on to hold that where a party is seen to have acted unreasonably in relation to the proceedings then the family court does have a jurisdiction to order that party to pay some or all of the costs. That decision has been followed and endorsed in a number of cases, in particular Re F (Family Proceedings: Costs) [2008] EWCA Civ 938.
So the task that the father has to mount this morning before this court is to persuade us that the judge was in error in concluding that his conduct in these proceedings came within the category of unreasonable litigation conduct, enabling the judge to exercise this unusual aspect of the costs jurisdiction.
It is not my intention to labour this judgment by setting out extensive detail of the range of adverse findings that the judge made against this father. Both of the parties who are particularly interested in this litigation, namely the mother and the father, are well aware of the criticisms that the judge made. But, by way of summary, I say this. First of all, the starting point for the round of litigation that the judge was engaged in concluding was a consent order for contact which had been made before a district judge in August 2009. That order, as the judge recites, almost in terms established the very framework for reasonable contact that the father was 3 1/4 years later trying to re-establish before Judge Waddicor at the end of the last year. Only two months after that order had been made, the father launched his applications to reopen the matter, and those were the applications which after three years the judge came to determine.
It is right that the initial application made by the father was modest in order to discharge provisions in the original order relating to the payment of nursery fees and fees at the contact centre, he having lost his employment at that...
To continue reading
Request your trial
-
Ms M v Mr F (1st Respondent) Mr H (2nd Respondent)
... ... 3 Ms M has applied for a declaration under s.55A of the Family Law Act 1986 that Mr F is the legal parent. She has also applied for financial provision for the child under Schedule 1 of the Children Act 1989 ... 4 I have read and heard evidence from the three adults and received submissions on the following questions: (1) What were the circumstances of the conception? (2) If conception was by AI, has it been shown that Mr H did not ... ...
-
C v S
...unreasonable stance” (per Lord Philips of Worth Matravers PSC page 2294 para 44). 124 In the case of Re G (Contact Proceedings: Costs) [2014] 1 FLR 517 the lower court had made an order that the father should pay the mother's costs following a detailed assessment. This was challenged by the......
-
A Father and A Mother
...in the foregoing quotation applies in both public and private law. 6 [20] A further authority which is of use in this area is Re G [2013] EWCA Civ 1017. In that case Sir Andrew McFarlane, President of the Family Division in England & Wales, discusses costs issues. This was a private law cas......