COSTS: M v T [2006] EWHC 2494 (Fam)

11 MAY 2006

(Family Division; Charles J; 11 May 2006)

The court proceeded on the basis that Bennet J's decision in W v J [2004] 2 FLR 300 should be construed as a conclusion that on its true construction Children Act 1989, Sch 1, did not give the court jurisdiction to make an interim payment in respect of costs to an applicant parent, contrary to what had been said by the Court of Appeal in Re S [2005] 2 FLR 94. However, the court was not bound by W v J, and did not agree with its apparent conclusion that interim legal costs were excluded from Sch 1 because they were for the benefit of the applicant parent personally and not for the benefit of the child. An overview of Sch 1 showed that the applicant parent was bringing the application for the benefit of the child, and was therefore acting in a representative or quasi-representative capacity. A payment in respect of costs to be incurred by the applicant parent in bringing the case effectively on behalf of the children was therefore effectively a payment for the benefit of the children. The jurisdiction to make such interim payments in respect of costs was needed to ensure that in certain instances children were properly represented and had an appropriate equality of arms with the respondent parent. Such payments could be taken into account in the substantive order made, reducing the potential for unfairness to the respondent parent.

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