In ‘Costs in private law children proceedings: what now?’, published in the September issue of Family Law, Barrister Nicola Fox from 1 King’s Bench Walk looks at that core of cases which is not
resolvable by dispute resolution and for which parties instruct legal
representatives to help them. These include cases where there are factual
disputes (eg allegations of serious sexual or physical abuse) or where there
is little possibility of agreement (eg an application to permanently remove
the child to another country). For these life-changing decisions, many parties instruct
legal representation, often at great personal financial sacrifice. In such
circumstances, what is the current position with respect to costs orders in
Under FPR 2010, r 28.1 the court may at any
time make such order as to costs as it thinks just. The power to order costs is
governed by CPR 1998 Parts 44, 46, 47 and 45.8 (except 44.2(2), (3), 44.10(2),
(3), 46 and 47). The rule that costs follow the event does not apply in family
proceedings. There is no mention of costs in the new FPR 12B for the Child
Arrangements Programme. The leading case remains
R v R (Costs: Child Case) 2 FLR 95 where the father had been
ordered to pay the mother’s costs on account of the father’s conduct being held
to have been unreasonable. Other reported cases looked at show costs orders
being made following failure to comply with contact orders and in cases where
the conduct of the litigation goes beyond the ordinary concerns of parents and
putting their case reasonably. Nicola Fox goes on to outline more example cases
and then turns to non-party costs’ orders and cases where such orders have been
made. Parties can also obtain costs allowances to fund Children Act litigation,
CF V KM (Financial Provision for
Child: Costs of Legal Proceedings
)  EWHC 1754 (Fam),  1 FLR 208; R v F 2 FLR 991.
Ms Fox concludes that there are certain categories
of cases where a costs order may be appropriate:
of no/little merit;
conduct of litigation;
are harmful to the children;
fact finding where determination largely one way.
Taking into account the Family Procedure Rules
2010 and the new Child Arrangements Programme, maybe the following are appropriate
a party refuses to mediate;
a party fails to comply with the rules and practice directions;
a party refuses to attend a SPIP
if a party breaches orders.
The full version of this article appears in the September 2014 issue of Family Law.
Online subscribers can access the full article here.