MG v AR
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWHC 3063 (Fam) |
| Year | 2021 |
| Court | Family Division |
Costs - Security for costs - Custody rights - Father resident outside jurisdiction applying for summary return of child to Dubai - Mother applying for security for costs - Power to make order for security for costs in family cases - Correct approach to making such order - Whether order to be made -
The father, a dual Saudi and British national, applied for a child arrangements order under section 8 of the Children Act 1989 in respect of his daughter, who had been born in England in 2013 and had dual British-Canadian citizenship. In 2015 a final order provided for the child to remain in the mother’s primary care and for the father to have weekly contact. In 2016, in child maintenance proceedings brought by the mother, a Canadian citizen, under Schedule 1 to the 1989 Act, the father was ordered to pay an outstanding interim lump sum and costs. In 2019, following the mother’s relocation to Canada with the child, the father applied to the Canadian court for a “non-Hague” return order to Dubai which was granted. On the mother’s appeal in 2020 the Canadian court concluded that the Dubai return order could not stand and stayed the father’s return application on the condition that he promptly commenced a similar proceeding in the Central Family Court in London. A year later, claiming that the child was a citizen of the United Kingdom, the father applied under the inherent jurisdiction for the child’s return to Dubai. The mother’s application for an order debarring the father from proceeding with his return application until he had discharged the costs, lump sum orders and the arrears of periodical payments outstanding against him was dismissed with costs. The mother, the respondent in the return proceedings, applied for security for costs relying on the “gateway” condition in FPR r 20.7(2)(a)(i)F1 that the father was resident out of the jurisdiction in Dubai.
On the application—
Held, granting the application, (1) that although the default regime in family cases was no order as to costs, the power to award security for costs was provided for in FPR rr 20.6 and 20.7; that drawing together the threads emerging from the authorities, on an application for security for costs in a family case the following steps had to be taken and the following principles applied: (i) the court should find as a fact that one of the “gateway” conditions set out in rule 20.7(2) was fulfilled, (ii) the court should have regard to all the circumstances in order to determine whether it would be just to make the order, (iii) if the substantive applicant had a meritorious case and was of limited means it would not normally be just to make an order, (iv) subject to (iii), the court should have regard to the merits of the substantive application and to the strength of the defence, as well as to the means of the parties, (v) when assessing the ability of the substantive applicant to pay an order for costs the court should make robust assumptions about the ability to pay where disclosure had been deficient, (vi) if the court determined that the respondent to the substantive application had a good chance of success it needed to be satisfied that there was a real risk that there would be no power to enforce an order for costs and findings as to “gateway” conditions were likely to be highly relevant to the assessment of that risk, (vii) in determining whether it would be just to make an order for security the court should pay particular attention to whether the application for security had been made promptly, (viii) if the court decided to make the order it ought to fix the amount in a robust, broad-brush manner, deploying a wide discretion, (ix) the court could reflect future litigation uncertainties, as well as potential reductions on a detailed assessment, in a percentage discount from the sum claimed, (x) in the first instance, security ought only to be provided in a financial remedy case up to the financial dispute resolution hearing while in a children’s case it ought to be provided up to the pre-trial review (or equivalent) payable in monthly instalments rather than in a single lump sum, (xi) before making an order the court ought finally to stand back and satisfy itself that what it was going to do was just and consistent with the best interests of any children, or at least not contrary to their interest, and (xii) in the event of default in the provision of security there ought not to be an automatic strike-out of the claim but rather the court was to consider what measures should be taken in the light of the default (post, paras 4,53).
(2) That in the present case, the condition in rule 20.7(2)(a)(i) was satisfied, namely that the substantive applicant was resident out of the jurisdiction; that having regard to all the circumstances, and applying the principles set out in the authorities, it was just to make an order for security for costs since the father did not have a meritorious case which would be stifled or hindered if the order were made; that while acknowledging that the father was in a way forced to litigate in England by virtue of the decision of the Canadian court, that did not alter the fact that he did not have even an arguable case to justify the invocation of the parens patriae doctrine and the mother’s defence was strong; that, further, the evidence did not support the conclusion that he did not have the means to pay an order for costs or to satisfy an order for security for those costs; that the court being satisfied that if an order for costs were made the mother would find herself in a position where she could not enforce, or would face significant obstacles in enforcing, that order, in circumstances where she was already owed £127,000 in unpaid costs and maintenance which the father had consistently refused to pay and which the mother had been unable to enforce, it was just that an order for security for costs be made, such an order being consistent with the best interests of the child (post, paras 78,79).
APPLICATION
The father, AR, applied under section 8 of the Children Act 1989 for a child arrangements order. On 25 November 2015, at a dispute resolution appointment Judge Cryan made a final order providing for the child, M, to remain in the primary care of the mother, MG, and for the father to have weekly contact. On 16 December 2016, at the final hearing in parallel proceedings for child maintenance under Schedule 1 to the 1989 Act brought by the mother, the father was ordered to pay an outstanding interim lump sum and costs orders.
In 2019, following the mother’s relocation to Canada with the child, the father applied to the Canadian court for a “non-Hague” return order to Dubai which was granted. The mother appealed and on 15 April 2020 the Canadian court concluded that the Dubai return order could not stand, staying the father’s return application on the condition that he promptly commenced a similar proceeding in the Central Family Court in London. On 28 May 2021 the father applied under the inherent jurisdiction for the child’s return to Dubai claiming that she was a citizen of the United Kingdom. On 23 July 2021 the mother’s application for an order debarring the father from proceeding with his return application until he had discharged the costs, lump sum orders and the arrears of periodical payments outstanding against him was dismissed with costs by the deputy High Court judge. On 25 October 2021 the mother, the respondent in the return proceedings, applied for security for costs relying on the “gateway” condition in FPR r 20.7(2)(a)(i) that the father was resident out of the jurisdiction in Dubai.
The matter was heard with judgment delivered in private and is reported with permission of the judge on condition that the anonymity of the child and her parents be strictly preserved.
The facts are stated in the judgment, post, paras 54–77.
Oliver Woolley (instructed by
Piers Pressdee QC (instructed by
The court took time for consideration.
16 November 2021. MOSTYN J handed down the following judgment.
1 In this judgment I will refer to the substantive applicant as the father and to the respondent as the mother.
2 The mother has applied for security for costs.
3 In this judgment I will first set out my understanding of the law applicable to an application for security for costs in a family case. For convenience, I will use male pronouns for an applicant or claimant for a substantive remedy and female pronouns for a respondent or defendant thereto.
4 The power to award security for costs is provided for in FPR Pt 20, Chapter 2, rules 20.6 and 20.7. Since the rules were promulgated in 2010, there has not been a reported judgment on an application for security for costs in a family case. This is not surprising, since the purpose of an order for security for costs is to protect a party in whose favour it is made against the risk of being unable to enforce any costs order they may later obtain. In the civil sphere, an award of costs against the losing party is the general rule. However, in the family sphere the normal rule, whether the case is about children or about money, is no order for costs unless litigation misconduct or other exceptional circumstances are demonstrated.
5 Rules 20.6 and 20.7 provide as follows:
“20.6 Security for costs
(1) A respondent to any application may apply under this Chapter of this Part for security for costs of the proceedings. (Part 4 provides for the court to order payment of sums into court in other circumstances.)
“(2) An...
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