Re L (Costs of Children Proceedings)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice Kitchin,Lady Justice Black |
| Judgment Date | 05 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1437 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2013/1075 |
| Date | 05 November 2014 |
[2014] EWCA Civ 1437
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
HIS HONOUR JUDGE MESTON QC
WY08P00491
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Kitchin
and
Lady Justice Gloster
Case No: B4/2013/1075
Mr Adam Langrish (instructed by Redferns Solicitors) for the appellant mother
Mr Steven Howard (instructed by NGA Solicitors) for the respondent father
Hearing dates: Friday 3 rd October 2014.
Introduction
This is an application by the appellant mother (whom I shall refer to as "the mother"), for permission to appeal, an extension of time and, if permission is granted, the appeal against paragraphs 5, 6 and 9 of an order made by HHJ Meston QC on 25 March 2013 in the Bournemouth and Poole County Court ("the Order"), on the application of the respondent father (whom I shall refer to as "the father").
The hearing before HHJ Meston QC took place in the absence of the mother for reasons which I shall elaborate below.
The material parts of the Order (as anonymised by me) were as follows:
"UPON hearing counsel for the applicant father …and counsel for the children's guardian.
AND UPON the respondent mother …. neither attending nor being represented, and the court being informed that the mother had been notified of this hearing and of the application for an order for costs.
AND UPON it being recorded that the children's current wishes and feelings regarding contact with their mother are as set out in paragraph 2 of the report of the guardian …. dated 20.03.2013, being that:
a) Contact with their mother should re-establish on a gradual basis and be guided by the children.
b) At least initially contact should be supported and might, for example, start with a short contact at the maternal grandmother's home or supported by the maternal aunt Sarah.
c) The children's expressed hope is that contact would gradually increase up to a maximum of:
i) staying contact during school term time, on alternate weekends from Friday after school until 7pm on Sunday;
ii) staying contact during Easter school holidays and Christmas school holidays, for one week; and
iii) staying contact during the Summer school holiday, for between two and three weeks.
AND UPON the guardian supporting the father being responsible for administering the children's trust funds, and further supporting the father being responsible for decisions relating to the children's future schooling.
1. The child TL (d.o.b. 10.04.2000) shall reside with the applicant father.
2. The child BL (d.o.b. 23.06.2003) shall reside with the applicant father.
3. The Order of District Judge Willis dated 15.05.2012 be discharged and replaced by the provisions of this order.
4. The applicant father shall be solely responsible for making decisions in respect of the schooling of each child.
5. The applicant father shall be responsible for administering the Child Trust Funds in respect of both children with account numbers [X] and [Y] and for that purpose the respondent mother is directed to sign and return by 4pm on 08.04.2013 the necessary documents as are required to transfer the 'registered contact' for each account to the father, and if she fails or refuses to do so a District Judge may execute those documents
6. The applicant father shall be responsible for administering the T… investment fund invested through A.. Unit Trust Managers Limited with account number Z and for that purpose the respondent mother is directed to sign and return by 4pm on 08.04.2013 the necessary documents as are required to vest that account in the father for the benefit of TL, and if she fails or refuses to do so a District Judge may execute those documents.
7. Permission is given to the applicant father to withdraw his application dated 03.12.2012 for an enforcement order.
8. Pursuant to section 91(14) Children Act 1989 both the applicant father and the respondent mother are prohibited from applying for any order under section 8 of that Act in respect of BL (d.o.b. 23.06.2003) or TL (d.o.b. 10.04.2000) without leave of the court. Any application for leave shall be referred to Judge Meston if available. This order shall remain in force until the 16 th birthday of the child concerned.
9. The respondent mother shall pay the costs of the applicant father in respect of the applications relating to the children since the order of 15 th May 2012 including costs previously reserved (but excluding the father's application for an enforcement order) in a sum to be agreed within 14 days of service of a revised costs schedule on the mother, or in default of agreement to be subject to detailed assessment on the standard basis by a costs judge at Bournemouth.
…"
Pursuant to an order of this court dated 22 October 2013, Ryder and Macur LJJ ordered that the mother's applications be adjourned until further order, that there should be a stay of paragraphs 5, 6 and 9 of the Order and that both parties were to notify the court by 19 December 2013 as to whether there had been an effective mediation. Unfortunately the mediation achieved nothing and, in the event, the applications came before this court on 3 October 2014.
Procedural history
The history of this matter can be summarised as follows. The mother and father married on 9 August 1997. The eldest child, a daughter, TL, was born on 10 April 2000 and the second child, a son, BL, was born on 23 June 2003. The marriage ran into difficulties in 2007 and in December 2007 the mother and children moved to rented accommodation in Weymouth. On 14 August 2008 there was an incident at the mother's home as a result of which the mother applied on 18 September 2008 for a non-molestation injunction. The mother was subsequently diagnosed with post-traumatic stress disorder as a result of this incident for which, in unrelated civil proceedings brought by the mother against the father, the father accepted liability.
After the breakdown of the marriage, there were sadly years of litigation between the parties involving, amongst other things, Children Act applications and contested property litigation. Until February 2013, TL lived with the mother and had made it clear that she did not want any contact with her father. There was thus no contact between TL and the father from 2009 until 2013. Litigation between the mother and the father focused on the son, BL. A previous residence application relating to BL was concluded at a final hearing before DJ Willis on 15 May 2012. By an order of that date he ordered that BL was to reside with the father and to have contact with the mother. Whilst this proposal was supported by the then allocated CAFCASS officer, a Mr B, the decision was apparently contrary to the repeated and recorded wishes of BL, who stated he wanted to live with his mother and sister. In the light of the history of the case, DJ Willis prohibited both parties (pursuant to s91(14) of the Children Act 1989) from applying for an order under s8 in respect of BL without the leave of the court for a period of 5 years.
The contact arrangements as ordered by DJ Willis broke down on a number of occasions when either BL refused to return to the father's care after contact with the mother and TL, or he refused to go to school on occasions when he was due to be collected from school by the father. This prompted the father to seek to make applications on 19 November 2012 to vary the contact order made by DJ Willis and prompted the mother to seek to apply for a residence order in relation to BL. At a hearing on 27 November 2012, DJ Willis gave leave for both parties to make applications in relation to BL and transferred the case to the Bournemouth County Court.
After proceedings had been transferred, a new guardian, a Mr R, was appointed to the case and a final hearing with a time estimate of 2 days was listed to start on 25 March 2013. During early 2013 there was a significant change of circumstances in that TL, having had various arguments with her mother, recommenced contact with the father, and within a week of doing so, expressed a wish to live with the father. At a directions hearing on 11 February 2013 it was agreed that TL would have contact with her father and that this would take place with no order of the court.
Recognising the significance of the changing developments, on 26 February 2013 Redferns, the solicitors acting on behalf of the mother, wrote to Mustoe Shorter, the guardian's solicitors, with a copy to the father's solicitors, NGA. That letter (as anonymised by me) stated as follows:
"Thank you for providing us with a copy of your letter to NGA solicitors dated 25 th February 2013. We can confirm that TL returned to her mother on 24 th February 2013. We are instructed that the situation between TL and her mother was very emotional immediately following her return home, but after a great deal of discussion, TL calmed down and became more settled. TL had convinced herself that her mother did not want her to return home, but this was never the case, but TL was angry because she thought she had been abandoned.
We are instructed that contact has been agreed between TL and her father on the basis that she stays with him for 3 nights on one week and 4 nights the following week, whereupon this will alternate. TL has expressed her satisfaction with this arrangement, but it is subject to reasonable condition that the father is actually present when the overnight contact takes place. Clearly, there is no benefit to TL if she is either staying at her father's home or somewhere else when the father is away on...
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