Re T (A Child) (Order for Costs)
| Jurisdiction | England & Wales |
| Judgment Date | 2005 |
| Date | 2005 |
| Court | Court of Appeal (Civil Division) |
Family proceedings – Costs – Contact – Proceedings relating to contact with child – Judge ordering mother to pay costs of hearings – Whether judge in error.
The parents had separated, and in due course the father had applied for contact with their child. Several hearings followed, and an order was made granting the father contact with his son. The mother experienced anxieties about contact and resisted it, at one point making allegations of sexual abuse against the father. Further proceedings ensued, in the course of which the judge investigated the disputed areas of fact which had given rise to the mother’s objections. The judge concluded that there was no reason for the mother to have any concerns, and made a further order for contact. In considering the issue of costs, the judge found that there had been no good reason for the earlier breakdown in contact and that the further fact-finding hearings had not, therefore, been necessary. The judge was thus satisfied that the mother had behaved unreasonably, and that her unreasonableness had been in relation to the conduct of the litigation rather than her approach to the child. She therefore awarded the father his costs of the fact-finding hearing and two consequential hearings. The mother appealed against the costs decision. She contended that her stance had been dictated by her personality and her reaction to feeling vulnerable, and that that vulnerability had been exacerbated by the father’s conduct. She submitted that in those circumstances, she should not be penalised with a finding that her conduct had been reprehensible or beyond the band of what could be considered reasonable; or, alternatively, that if she had been unreasonable, the court should draw a distinction between somebody who viewed events from a distorted perspective as opposed to someone who was being wilfully unreasonable or behaving reprehensibly.
Held – It was settled law that the general rule that costs should follow the event did not apply to family cases and that in cases involving children, in particular, costs awarded against one parent or another would be exceptional since the court would be anxious to avoid the situation where a parent might feel ‘punished’ by the other parent which would reduce co-operation between them. That would only impinge ultimately on the welfare of the child or children concerned. The conduct of the parties would, in reality, be the major consideration when deciding whether or not an exceptional order for costs should be made, and the ‘unreasonableness’ of conduct had to be relate to the conduct of the litigation rather than the welfare of the child. Care had to be taken when apparently unreasonable conduct was as a result of the personality of the relevant party: in
such circumstances, there would often be an overlap of that party’s conduct of the litigation and the conduct relating to the welfare of the child. It had to be recognised that irrational behaviour was commonplace in complex contact disputes, and that such behaviour might well be exacerbated by the personality of the individual parent. However, there would be a limit to which allowance could be made for a parent who deliberately and unreasonably obstructed contact by the other parent in circumstances where, on any objective analysis, contact would be in the interests of the child and should take place. The judge’s findings of fact would therefore be important. Where a judge had carefully investigated the disputed areas of fact which had given rise to a parent’s objections to contact, and had found in terms that there was no reason for the resident parent to have any concerns, a resident parent, even if still anxious, would have no proper grounds for failing to implement the order for contact. If, in those circumstances, the resident parent failed to implement the order, and if the matter had to return to court, it would be open to the court to find that that parent was acting unreasonably. In the instant case, the judge had investigated the matter carefully and found that there had been no good reason why contact should not have taken place. The mother could not, in those circumstances, rely on her own irrational anxieties to bring her conduct within the band of reasonableness. Her conduct had been unreasonable, and had led to unnecessary litigation. The judge had, accordingly, been entitled to make the order for costs she had. Accordingly, the appeal would be dismissed.
Cases referred to in judgmentB (M) v B (R) [1968] 3 All ER 170, [1968] 1 WLR 1182, CA.
D (children) (shared residence orders), Re[2001] 1 FCR 147, [2001] 1 FLR 495, CA.
G (a minor) (wardship: costs), Re [1982] 2 All ER 32, [1982] 1 WLR 438, (1982) 3 FLR 340, CA.
Gojkovic v Gojkovic (No 2) [1991] FCR 913, [1992] 1 All ER 267, [1992] Fam 40, [1991] 3 WLR 621, [1991] 2 FLR 233, CA.
M (child case: costs), Re[1995] 1 FCR 649, [1995] 1 FLR 533.
M v H (costs: residence proceedings) [2000] 1 FLR 394.
R v R (costs: child case) [1997] 1 FCR 613, [1997] 2 FLR 95.
Sutton London BC v Davis (No 2) [1994] 2 FCR 1199, [1995] 1 All ER 65, [1994] 1 WLR 1317, [1994] 2 FLR 569.
AppealThe mother appealed against an order by Judge Kushner QC, sitting in the Manchester County Court, dated 9 June 2004, whereby she ordered the mother to pay the costs incurred by her the father of four hearings in the proceedings between them relating to their son, J. The facts are set out in the judgment of the court.
The applicant appeared in person.
The respondent appeared in person.
WALL LJ.[1] This is the judgment of the court.
INTRODUCTION[2] With permission granted by Black J at an oral hearing on 5 November 2004, Mrs ST (the mother) appeals against an order made by Judge Kushner QC sitting in the Manchester County Court on 9 June 2004. The judge ordered the mother to pay the costs incurred by her former husband Mr DT (the father) of four hearings in the proceedings between them relating to their son J, who was born on 5 November 1999. Those proceedings, which had begun as an application by the father for contact with J, concluded on 17 February 2004 with an order that J reside with him. The mother also sought permission to appeal against the residence order, but permission was refused by Black J at the oral hearing on 5 November 2004.
[3] The four hearings for which the judge ordered the mother to pay the costs were those, which took place on 9 December 2002, 15 May and 21 August 2003, and 13 May 2004. The last of these was a discrete hearing in which the father sought orders for costs relating to the previous three hearings. The significance of the first three hearings will shortly become apparent.
[4] Both the mother and the father appeared before us in person. For reasons which will become clear as this judgment progresses, that could not have been an easy experience for either of them. We were, however, impressed by the clarity of the arguments each addressed to us, and the courtesy which each extended to the other and to the court.
[5] Any order for costs between parents in private law proceedings relating to their children is, as the judge recognised, unusual. It is, accordingly, necessary to set out the background facts. We do so by reference to the judge’s various judgments.
THE FACTS[6] The mother is 33 and the father 34. They married on 10 August 2001 after a number of years of cohabitation. The father is an information technologist: the mother is not in gainful employment, although she is currently at college and hopes to start her own business later in the year.
[7] The mother has another child, A, who was born from another relationship on 13 January 1991. A does not appear to have seen very much of his natural father over the years, and the judge found that the father had treated A as his son for many years.
[8] When the case came before her for the first time on 4 December 2002, the judge found that there had been a continuous dispute about contact by the father to both children since the parties’ separation in March 2002. She referred to ‘various agreements and orders which all have faltered almost immediately’. She added:
‘The mother says that this has either been due to force of circumstances, such as illness, or due to the father’s conduct; the father maintains it is part
of a campaign conducted by the mother and assisted by the maternal grandmother to distance and in fact eradicate him from the lives of both boys.
In addition the mother maintains that the father is in breach of various undertakings made by him on 31 October 2002 relating to publishing material about these proceedings and the mother and maternal grandmother.’
[9] Convinced that any agreement between the parties relating to contact would founder sooner or later (probably sooner) the judge decided on 4 December 2002 that—‘a fact finding hearing was essential to lay various disputes to rest once and for all. Further directions could then be made and progress hopefully ensured.’ The judge then adjourned the case for five days: evidence was rapidly assembled, and the fact finding hearing duly took place on 9 December 2002.
[10] Following the finding of fact hearing, the judge handed down a careful, clear and well-structured reserved judgment on 22 January 2003. Under the heading ‘THE HISTORY’, the judge made perceptive assessments of both parties. The mother she described as—
‘an emotional woman who, when feeling vulnerable, has a tendency to misinterpret or magnify the actions of others in such a way that, unless they are unequivocally in her favour, she assumes are deliberately working against her. This is evident in the way she has approached contact and in particular the way she has dealt with the outside agencies which have been involved with the family along the way.’
Of the father she said:
‘For his part (the father) inappropriately uses his professional skills when trying to deal with emotional and relationship difficulties. Graphic examples of this can be seen in...
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