J (Children) (Costs of Fact-Finding hearing)
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Neutral Citation | [2009] EWCA Civ 1350 |
| Date | 2009 |
| Year | 2009 |
| Court | Court of Appeal (Civil Division) |
Practice – Costs – Fact-finding hearing – Presumption of no order – Father applying for unsupervised contact with children – Mother making allegations of domestic violence – Majority of allegations being established at fact-finding hearing – Mother’s application for costs of hearing being dismissed – Whether district judge erring by refusing to make costs order against father.
The parents had two children prior to their separation in 2007. The mother thereafter refused to allow the father to have other than supervised contact with the children at a contact centre, alleging that there was a substantial history of domestic violence on his part which suggested that he might be a risk to the children. The father applied for unsupervised contact, stating that the mother’s allegations were false. At a fact-finding hearing scheduled in light of that dispute, the mother made 20 allegations against the father. The district judge found 14 established, that number including one allegation established only to the extent of an admission by the father, four allegations which had been the subject of a partial admission by the father but which had been established to the more serious extent alleged by the mother, and nine allegations which the father had entirely denied but which had nevertheless been established. The mother applied for her costs of the hearing, contending that, although it had been in the context of the father’s application for contact and it was rare to make an order for costs in proceedings under the Children Act 1989, the hearing had been a fact-finding inquiry into allegations properly made by her which had been the subject of positive findings despite being denied by the father to a significant extent. Her application was dismissed, the district judge observing that the parties had had a right to come to court. She then appealed to a circuit judge, submitting that the fact-finding element of the father’s application had to be looked at it in a different light from the welfare aspect of it. The circuit judge dismissed the appeal, holding that such a compartmentalised approach was erroneous since the question of the child’s best interests could only be ascertained by having such a fact-finding hearing as part and parcel of the whole process. The mother appealed.
Held– It was clear that, in most disputed cases in relation to children, whether in private or in public law, parties justified 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 would often present a different version. Thus, to a greater or lesser extent, issues of historical fact probably arose in the majority of such proceedings. Although in the vast run of those cases it would not be appropriate to make an order for costs by reference to the court’s determination of such issues, in the instant case the mother’s costs of the hearing before the district judge fell into a separate and unusual category. The hearing had been devoted exclusively to the court’s consideration of serious and relevant allegations against the father of what could only be described as misconduct on his part. There was, in that sense, a ring-fence around that hearing and thus around the costs referable to it. The instant case was not an example of the ‘run of the mill’ fact-finding inquiry in which the mother would exaggerate and the father would minimise in equal measure; a proper exercise of discretion on the part of the district judge had called for an order for costs to be made against the father. In the light, however, of the allegations which the mother had failed to establish, and of the limited admissions made by the father prior to the hearing, he should have been ordered to pay only two-thirds of the mother’s costs of and incidental to the fact-finding hearing. It followed that the mother’s appeal to the circuit judge should have prevailed. Accordingly, the appeal would be allowed; Re T (a child) (order for costs) [2005] 1 FCR 625 considered.
Cases referred to in judgmentsPractice Direction (residence and contact orders: domestic violence and harm) [2009] 1 FCR 223, [2008] 2 FLR 103.
Sutton London BC v Davis (No 2) [1994] 2 FCR 1199, [1995] 1 All ER 65, [1994] 1 WLR 1317, [1994] 2 FLR 569.
T (a child) (order for costs), Re[2005] EWCA Civ 311, [2005] 1 FCR 625, [2005] 2 FLR 681.
AppealThe mother appealed against an order made by Judge Knowles, sitting as if in the Uxbridge County Court on 13 February 2009, which dismissed her appeal against the decision of District Judge Wicks on 19 March 2008 to make no order as to costs following a fact-finding hearing during contact proceedings in which the majority of her allegations of domestic violence against the father had been established. The facts are set out in the judgment of Wilson LJ.
Deborah Eaton QC and Elizabeth Selman for the mother.
Marianna Hildyard QC and Louise MacLynn for the father.
WILSON LJ(giving the first judgment at the invitation of Ward LJ).
[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 fact-finding 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.
[2] A mother appeals against an order made by Judge Knowles, sitting as if in the Uxbridge County Court, on 13 February 2009. The circuit judge’s order was to dismiss the mother’s appeal against an order made by District Judge Wicks on 19 March 2008 and, indeed, to order that the mother pay the father’s costs of the appeal. On 18 and 19 March 2008 the district judge conducted a fact-finding hearing into allegations by the mother, within an application for contact made by the father, that during the marriage he had perpetrated acts of violence towards her, including in the presence of one or other of the two children of the marriage, and indeed had to a limited extent been violent towards the older child. At the end of that hearing the district judge gave a judgment in which, to a significant extent albeit not entirely, he found proved the mother’s allegations. When, however, the mother sought an order for costs of the fact-finding inquiry against the father, he refused the application and made no order as to costs. It was against his refusal to make an order as to costs that the mother unsuccessfully appealed to the circuit judge.
[3] The mother is now aged 35 and the father is now aged 38...
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