T (a child), Re

This is the judgment of the court.

With permission granted by Black J at an oral hearing on 5 November 2004, Mrs. ST (the mother) appeals against an order made by Her Honour 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.

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.

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.

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 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.

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.

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:

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.

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: -

The judge then proceeded, with commendable clarity, to make findings of fact in relation to the issues raised by the mother against the father. She did so under a number of headings. These were (1) domestic violence; (2) inappropriate treatment of A; (3) events following the commencement of proceedings.

In relation to domestic violence, the judge found one incident in 1993 or 1994 established, which the father admitted, and in which he had inflicted a blow to the mother's leg. The judge also found in relation to this incident:

Whilst finding that the father's conduct in relation to two of the other four incidents alleged by the mother did not reflect well on him (in relation to two of them the father was drunk) the judge made clear findings that the incidents identified by the mother did not amount to domestic violence. Furthermore, there had been no physical violence since the marriage. The judge was thus clear that domestic violence did not feature as an issue relevant to contact. To the contrary, she found that:

By December 2002, the judge found that "domestic violence was centre stage as the consideration for the contact centre according to the mother". She had written a letter of complaint about Pro Contact (the specialist Contact Centre in Manchester, which was facilitating contact) stating that the reason for using a contact centre in the first place, was domestic violence towards herself. The judge commented that there were other similar examples where "certain issues have gathered momentum in the mother's mind and which have affected her conduct and attitude to individuals and to the issue of contact."

The judge found that the father had "tried very hard to achieve contact with A after the separation". The mother had alleged that the father had behaved inappropriately towards A in a number of ways, including inappropriate physical chastisement. The judge made a finding that in the parents' household (where smacking of children was permitted) there may have been occasions when the father struck A harder than was necessary or desirable. However, the independent evidence, she found, demonstrated a healthy and affectionate relationship between the father and A, and nothing to suggest inappropriate chastisement or apprehension on the part of A in the father's company. The judge felt that "this is probably another example of isolated incidents being inflated out of proportion.

In the longest section of her judgment, under the heading EVENTS FOLLOWING THE COMMENCEMENT OF PROCEEDINGS, the judge traced the history of the litigation since its initiation by the father on 22 April 2002. It is, once again, a clear and very evenhanded account. She is critical of the mother for her failure to honour agreed contact arrangements. She understands the father's frustration, but is heavily critical of him for inappropriate questionnaires which he sent to A without the mother's knowledge with boxes to be ticked indicating how A felt about the father and contact with him. Her most severe criticism of him is contained in paragraph 6.9 of her judgment when she says: -

The judge made a number of specific findings. Principal amongst them was her rejection of an allegation by the mother that whilst J had chicken pox, the father held him down and burst one or more blisters with a pin during contact. Since many of the mother's complaints derived from what she reported J as saying to her, it is significant, particularly in the light of subsequent events, that the judge commented on J's delayed speech and doubted his ability to convey information to the mother in the way she described. The judge accepted the evidence of Pro-Contact as to the warmth of the relationship between the father and J, and described the mother's attitude as:

The judge had evidence from the manager of Pro Contact on the importance to J of contact with his father being maintained, and she saw videos of the beginnings of three contact sessions. On each occasion, J had rushed across the room to greet his father. The judge contrasted the mother's approach. Faced with what the judge regarded as incontrovertible evidence in the videos as to the obvious affection between father and son, she described the mother's attitude as "tonally dismissive, implying that it was all show." The judge was also critical of a letter, which the mother had written to the steering committee of Pro Contact setting out a catalogue of unwarranted complaints, and misquoting Pro Contact's evidence to the court. The judge commented: -

We have taken some time over the judgment relating to the finding of fact hearing on 9 December 2002 for several reasons. Firstly, it is a model of its kind. The parties could have been in no doubt where they stood. In particular, the mother should have been reassured that none of her anxieties about contact was warranted; that J had an excellent relationship with his father; and that contact was manifestly in his best interests. Secondly, it set the agenda for the future. There was a clear and comprehensive set of findings upon which the court and the parties could build. Thirdly, and perhaps most relevantly for this appeal, the judgment should have been the end of the dispute. Both parties should have accepted the judge's findings, reinforced as they were by the objective evidence of a specialist contact centre, Pro Contact. Further litigation should not have been necessary, save in so far as the court's assistance was required in introducing a gradual build-up of contact to the level required to meet J's need for a proper relationship with his father.

Unfortunately, this is not what happened. In February 2003, the judge introduced a regime of staying contact on two weekends in four. The mother objected to staying contact, but the judge thought J was ready for it. All the reports from Pro Contact, which had observed handovers and the first half hour of contact, were positive. The judge rejected the mother's suggestion that two nights was too long a stay for a child of three. Pro Contact reported that J had been very excited at the prospect of staying contact and content after it. He had moved between his parents with ease.

In a statement which she made on 3 March 2003, the mother made the following positive assertion:

Fortunately, the matter was brought back promptly before the judge on 19 March. She determined to investigate the allegation of sexual abuse, and gave directions for the filing of evidence. She directed that, in the meantime, contact should resume. She refused the father's application for a penal notice to be attached to the order, but gave the father permission to re-apply promptly if there was any breach. The father indicated that he wished to apply for the residence of J, and the judge expanded the remit of the CAFCASS officer to include consideration of that application. The CAFCASS officer was directed to file a report for a hearing on 15 May 2003.

On 8 April 2003, J was alleged to have made a remark to his mother to the effect that he had masturbated his father. Thereafter, by agreement, contact resumed at and supervised by Pro Contact. The father agreed to this for his own protection against further allegations.

On 15 May 2003, the judge realised that she would have to hold another fact-finding enquiry. Because the matter was becoming increasingly complex and because there was an issue about J's developmental ability to articulate what he was alleged to have said, the judge agreed to the involvement of a well known and highly respected local consultant child psychologist, Mrs. Valerie Mellor, who was able to advise and report at short notice. Thus when the matter came back to her in August 2003, the judge had a report from Mrs. Mellor. In addition, she had reports from J's speech and language therapist Hilary Forest, and from Wendy Cahill of Pro Contact.

Mrs Mellor's report, which is in our papers, is another model of clarity and good sense. It is, we think, worth setting out Mrs. Mellor's conclusions and her recommendations in full. They were: -

To her credit, the mother did not contest Mrs Mellor's conclusions, and the judge re-instated the cycle of contact she had ordered in January 2003, which, of course, included staying contact. She put over the father's residence application to 5 and 6 January 2004.

The father does not seek an order for costs in relation to the hearing (culminating in a reserved judgment by HH Judge Kushner on 17 February 2004) at which the judge made a residence order in his favour. He does not do so because he recognises that it was reasonable for the mother to resist his application, and that there can be no legitimate criticism of her doing so. In these circumstances, and given Black J's refusal of permission to the mother to appeal against the residence order in the father's favour, we think it sufficient if we record the judge's assessment in paragraphs 4.13 to 4.17 of the judgment she gave on 17 February 2004, in which, after a careful evaluation of the competing factors, she said: -

After further consideration of A's position, the judge contemplated the making of a joint residence order in relation to J, but decided against it: -

In our judgment, Judge Kushner's management of this difficult case is to be highly commended. From the moment it first came before her on 4 December 2002, she rightly reserved it to herself and took a firm procedural grip of it. She made swift and impeccable findings of fact, and when those did not have the desired effect, responded immaculately by an equally swift and effective investigation of the sexual abuse allegations, in relation to which she appropriately engaged expert assistance. Handled differently, this case could well have spiralled into a wholly intractable dispute through a combination of ill feeling, frustration, delay and an absence of proper case management. Instead, effective case management and firm judicial control have produced a clear resolution, and one which is plainly in the interests of J. We can say that with some confidence, because we were told at the hearing of this appeal that, by agreement, the parents have arrived at what is in broad terms a 60:40 split of J's time between them, with which, despite niggles as to the detail, both are broadly content. The father in particular was appreciative of the fact that there was judicial continuity. The mother had found Mrs. Mellor' intervention particularly helpful.

The case, accordingly, is in our view a paradigm example of how a difficult contact dispute should be handled.

Against this background it is in one sense unfortunate that we have to resolve an outstanding issue of costs. It is, however, an issue of considerable importance to both parties, and has implications, we think, beyond the narrow ambit of the instant case.

Before the judge, the father restricted his application for costs to three areas. These were recorded by the judge as follows: -

The total, which the father sought, amounted on his assessment to £20,000. His overall costs, he told us, including those relating to the proceedings for ancillary relief, amounted to a total of £110,000.

The proceedings for ancillary relief between the parties are relevant. The father lives with J in the former matrimonial home. The outcome of the financial proceedings was that the father was ordered to pay to the mother a lump sum of £60,000, which he has raised by way of further mortgage against the property. He was also ordered to pay periodical payments to the mother in the sum of £1,100 per month whilst the mother completed her studies at college, although it is open to the mother to apply to the court to extend the term if she does not achieve gainful employment. The judge was told that the lump sum was being held in an interest-bearing account pending her decisions as to costs.

The father told us, and we do not think this to be in issue, that it was recognised at the hearing of the proceedings for ancillary relief that the sum of £60,000 would not be sufficient to enable the mother to acquire alternative accommodation for herself and A. The mother is currently living in rented accommodation. There is, therefore, no doubt that the mother has the funds to meet the costs which the father seeks, although she told us (and again this appeared to be common ground) that her costs for the time she was in receipt of public funding amounted to £18,000 (over which the Legal Services Commission had a statutory charge as property recovered or preserved in the proceedings). Furthermore, she had to repay £5,000 in relation to state benefits, which had been inappropriately paid to her. Thus, if she had to pay the father's costs of 20,000, she would be left with only £17,000 of the £60,000 lump sum.

The principles, which fall to be applied, are not, we think, in dispute. The judge summarised them succinctly in the following way: -

In relation to the fact-finding hearing between 9 and 13 December 2002, the father argued that there had been a hearing on 31 October 2002 before HH Judge Allweis, the Designated Family Judge for Greater Manchester at which the parents had reached an agreement. All the matters subsequently thrashed out at the finding of fact hearing in December were, he submitted, live in October, but were not pursued. Nothing, he argued, had changed between October and December. The father did not dispute the mother's entitlement from her perspective to initiate the application in October. What was unreasonable was her continuation of the litigation beyond that point, which had been unnecessary and only due to her obdurate opposition to contact. The relevant issues pursued in December had been resolved in the father's favour. The father had been obliged to litigate in December in order to restore contact, and the mother's pursuit of the allegations against him had been unreasonable.

The mother argued that her stance had been dictated by her personality and her reaction to feeling vulnerable. That vulnerability had been exacerbated by the father's conduct. In these 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. Alternatively, if she had been unreasonable the court should draw a distinction between somebody who viewed events from a distorted perspective as opposed to one who is being wilfully unreasonable or behaving reprehensively. She also pointed to all the undesirable features of costs orders being made against a parent identified in the authorities.

The judge came to the conclusion that although the finding of fact hearing in December 2002 had been brought about at her insistence and for the reasons we have recorded, it remained the position that there had been a perfectly proper compromise before Judge Allweis in October 2002, and that nothing had changed in the meantime. There had, accordingly, been no good reason for the breakdown in contact and the fact-finding hearing should not have been necessary. The judge was thus satisfied that the mother had behaved unreasonably, and that her unreasonableness was in relation to the conduct of the litigation rather than her approach to the child. She accordingly awarded the father his costs of the December 2002 finding or fact hearing.

The judge dealt with these in the following way: -

The judge then decided that a summary assessment was inappropriate and referred the issue to the costs judge for detailed assessment. She awarded the father the costs of the application for costs. In our view, if the judge was right to make costs orders against the mother in relation to the three hearings in December 2002, May and August 2003, it follows that she was entitled to make an order that the mother pay the costs of the application for cost itself, decided by her in June 2004

The grounds of appeal contained in the appellant's notice read as follows: -

In her skeleton argument, the mother refers back to the arguments she addressed to the judge. She cited the judgment of Butler-Sloss LJ in Gojkovic v Gojkivic and another (No 2) [1992] Fam 40 at 57C, stressing the unusual nature of an order for costs in children's cases and the spectre of orders for costs discouraging those with a proper interest in the child participating in the debate. She also relied once again on B(M) v B(R ) [1968] 1 WLR 1182 at 1185 where the point is made that an order for costs would exacerbate feelings between the parents to the ultimate detriment of the child, as well as Re G (Official Solicitor's Costs) (1982) 3 FLR 340 at 345B, where Ormrod LJ repeated the well established proposition that where the proceedings are between parents, both of whom are acting bona fide in the interests of the child, it was not uncommon to make no order as to the costs of the proceedings.

The mother also made the point that the father is in a much stronger financial position that she is. He has retained the former matrimonial home, which is increasing in value, whereas she has only a small amount of capital patently insufficient to re-house herself and A. The father has an income of £70,000 per annum, and was able to pay for his own legal fees. He had, moreover, gone to expensive solicitors and counsel.

Finally, the mother relied on the judgment of Wilson J in London Borough of Sutton v Davis (No 2) to which reference has already been made; to D v D (Shared Residence Order) [2001] 1 FLR 495 (in which a father agreed not to enforce an order for costs in his favour) and M v H (Costs: Residence Proceedings) [2000] 1 FLR 394, in which a mother was awarded 75% of her costs against the father in relation to an application for residence which the judge found should not have been made, and in which the father should certainly should not have persisted.

Despite the extensive citation of authority, we think the principles governing the award of costs in children's cases are well established, and more than adequately summarised by the judge in the extract from her judgment, which we have set out at paragraph 36 above.

In giving permission to appeal on the costs issue, Black J said: -

In our judgment, the two questions which arise are (1) was the judge right in her assessment that the mother's conduct in relation to the litigation was unreasonable? (2) If the answer to (1) is "yes" was it a proper exercise of her discretion in all the circumstances of the case, and bearing in mind the exceptional nature of costs orders, to make orders for costs against her?

We have come to the conclusion that the judge's exercise of discretion on the facts of this case cannot properly be impugned, and that the orders for costs which she made must stand.

We recognise that irrational behaviour is commonplace in complex contact disputes, and that such behaviour may well be exacerbated by the personality of the individual parent. There is, however, in our judgment, a limit to which allowance can be made for a parent who deliberately and unreasonably obstructs contact by the other parent in circumstances where, on any objective analysis, contact is in the interests of the child and should take place. Of course there is a whole range of cases in which opposition to contact is reasonable. The classic example is the parent who has been traumatised by domestic violence, or where the parent seeking contact has been violent to the child. Equally, we accept, there are many cases in which there is a genuine dispute over the amount of contact, the suitability of holidays and overnight stays and so on.

It is for this reason that the judge's findings of fact are so important. Where a judge, as here, carefully investigates the disputed areas of fact which have given rise to a parent's objections to contact, and where the judge, as here, has found in terms that the child enjoys a good relationship with the non-resident parent; that there is no reason for the resident parent to have any concerns; and that there is no reason why contact should not take place, a reasonable parent, even if still anxious, has no proper grounds for failing to implement the order. If, in these circumstances, the resident parent unreasonably fails to implement the order or an agreement as to contact, and if the matter has to return to court, it will be open to the court to find that that parent is acting unreasonably.

In the instant case, the parties had reached an agreement in October 2002. There was manifestly no reason why contact should not take place in accordance with that agreement. The mother resiled from it for no good reason. She was, at the time, legally represented and plainly had access to good advice. The judge investigated the matter carefully and found that there was no good reason for her change of mind. In our judgment she cannot in these circumstances rely on her own irrational anxieties to bring her conduct within the reasonable band. Her conduct was unreasonable, and it led to unnecessary litigation.

The same, in our judgment, applies to the allegations of sexual abuse. The mother had only days before expressed her wish to move forward. Her misinterpretation of what J may or may not have said should not have led to the suspension of contact and the further intervention of the court. It is patently clear that J had not been sexually abused by his father, and the judge found that the mother was unreasonable "in her easy acceptance of the possibility that the father had abused J". That was a finding, in our judgment, which the judge was entitled to make. The mother and the maternal grandmother had misinterpreted innocent remarks made by J and given them a sinister interpretation that was unreasonable. The fact that the mother made and persisted in the allegations to a hearing may well in part reflect her anxious personality, but does not make it reasonable for her to have done so.

In our judgment, the father was right to restrict his claim to the three hearings he identified. His approach, in our view, illustrates neatly the divide between legitimate litigation over reasonable disagreements, and irrational conduct with prolongs unnecessary litigation.

Ultimately, the judge was exercising a judicial discretion. Her management of the case had been impeccable. In our judgment she was entitled to make the orders for costs she did, and right not to assess them summarily. Quantum is ultimately a matter of assessment for the costs judge. We also do not think that, having properly set out the principles to be applied, she can be criticised for introducing in that context the concept of fairness in all the circumstances, or for stating that it would be "an affront to justice to expect the father to pay for the costs of defending himself" against the wholly unwarranted allegations of sexual abuse which, on the judge's analysis, should never have been brought. The appeal must accordingly be dismissed.

We do not think that the orders for costs which we have upheld in the instant case are either likely to or should deter a resident parent from advancing a reasonable opposition to contact, which is genuinely based on a proper perception of the child's interests. But those who unreasonably frustrate contact need to be aware that the court has the power to make costs orders in appropriate cases, and that the consequences of such unreasonable behaviour may well be an order for costs made against the resident parent who has behaved unreasonably.