BL v MK & Ors

MK

THE CHILDREN (by their Children’s Guardian)

This is an application made by the father, BL for an order that the costs he has incurred as a result of defending serious allegations made against him by his former wife MK are met by her.

The proceedings concerned the welfare of the parties 3 young children ,A, B and C

I have handed down two substantive judgments relating to the welfare of these children and in relation to very serious allegations of harm made by each parent against the other. At the heart of the mother’s allegations against the father were allegations of domestic abuse, and of very serious harm, sexual touching by the father of the children. I am not going to rehearse the background in this judgment, and both previous judgments should be read into the background of this judgment relating to costs. Those judgments give a factual background to the issues I have considered when addressing my mind to the question of costs and the conduct of the mother (and indeed of both parents). I base my assessment of behaviours on the findings made in the main fact finding judgment as well as since that date.

The father, it is right, had to endure very serious allegations being made against him. I found that the mother had questioned the children, in particular Child A and Child B in such a way which not only caused them harm, but put into their minds inappropriate matters of a sexualized nature, which should be characterized as sexual harm by the mother of the children. The type and nature of questioning was designed to portray the father in the most sinister of lights.

The nature of the allegations, the questions posed of the mother and the very serious consequences for the father if found to be true led him to seek representation both from senior private law solicitors Glynis Wright and from a very senior and highly skilled barrister Ms Sally Barnett. Having reached the end of his finances and being no longer able to meet the solicitor costs the father resorted to, taking out loans from family members and other forms. Ms Barnett then agreed to represent the father on a direct access basis and reduced her fees to assist him. The court remains grateful to her in so doing.

This judgment is the final in these proceedings and I have taken time to ensure that the mother has been properly served with not only notice of the applications being made against her but also that she have time to respond so that her argument could be considered by me.

I had to ensure that documents had been sent to her, and I have been provided with satisfactory evidence that they have. I have awaited any response and have considered this judgment when sitting and able to do justice to this complex case and the serious and significant question of costs. It has been delayed and my apologies for this which arose largely from my part time status.

Whilst a party to the proceedings the children’s Guardian has chosen not to make any submissions in relation to costs.

Relevant to my decisions is the history of the development of judgments in relation to costs tracing its development since the decision of Wilson J, as he then was, in London Borough of Sutton v. Davis (Costs) (No. 2) [1994] 1 WLR 1317.

Also relevant are the decisions of the Supreme Court in ReS [2015] UKSC 20and Re T (Care Proceedings) (Costs) [2012] UKSC 36. Re T considered the decision in Re J (Children) [2009] EWCA Civ 1350, in which Wilson LJ, as he then was, held that a fact-finding hearing could be ringfenced from a general welfare enquiry. Re T was a public law case in which the Supreme Court returned to the trial judge’s decision not to award costs after a complete exoneration after a five and half week trial. Recorder Dias KC distinguished that case, with subtle differences between that and private law fact finding hearings, the principle that was before the Supreme Court in Re T. After drawing the authorities together, his conclusion was that some form of unreasonable conduct by the party subject to adverse findings is generally necessary. Even then, that opens the door rather than necessitates making a costs order. The approach to be taken by the court is set out in by Keehan J in Re A and B (Parental Alienation: No 3) [2021] EWHC 2602 (Fam) and by Arbuthnot J in C v. S [2022] EWHC 800 (Fam).

The court is obliged to assess in general terms the contribution that unreasonable and reprehensible conduct has made to cost of proceedings. FPR 28 and CPR 44 apply. The principle of a clean sheet is set out in CPR 44.2 and echoed in FPR 28.1. Subject to qualification in FPR 28.2, the rules allow the court, at any time, to make an order for costs when it thinks just. That exercise must be carried out in accordance with the overriding objective.

Ms Barnett in her helpful submission to me draws attention to the decision of Re E (Children:Costs) [2025] EWCA Civ 183

Paragraphs 23-25 sets out a summary of the law which I set out and adopt too into this judgment.

The facts of this appellate case are relevant in my judgment to the facts of this case: In Re E the mother had raised allegations of the ‘utmost seriousness and complexity’ § 9.There were very many court hearings, police and social services involvement. The M had convinced herself that the F had sexually abused her children and had ‘pressured them to start talking’(§12), she had ‘behaved in an alienating way towards the children by expressing an ongoing pattern of negative attitudes and communications about the father which had the potential or intention to undermine or destroy the children’s relationships with the father’ (§13).

In the court below, the judge found that the distinction between a parent knowing that the allegations were wholly false and on the other hand being convinced that these things were true was an important one (61(4)) and no order for costs was made in the lower court.

On appeal the F argued that the mere fact of the M’s pursuit of the sexual abuse allegations leading to F’s cross allegation in and of itself justified a costs order on the basis it was reprehensible or unreasonable litigation conduct. The Court of Appeal held that the learned Judge at first instance failed to recognise the ‘warping impact of those allegations (para 20).

The Court of appeal held that: ‘the judge should have acknowledged that the M’s extreme allegations that the father had sexually abused the older children ……..were of an entirely different character and that different costs considerations consequently arose.’(33)

Importantly, the distinction between knowing to be false and convincing oneself was found to be ‘a subtle distinction and I cannot see how it avails the mother in this case’ ( para 35).

This decision makes plain that there are no differences to the approach to an assessment of costs whether when considering applications following fact finding hearings or public law cases in which the Local Authority may bear the impact of a considered order for costs against them. Paragraph 23 above was emphasises as being the correct approach in law to the question of costs.

Therefore, the court retains a wide discretion as to costs and must have regard to all the circumstances of the case, as in CPR 44.4. It is submitted that a court must consider whether a party has succeeded in all or part of their case. It can also consider conduct, which may include before and during the hearing. The court may consider whether it was reasonable to raise, pursue, contest and raise each allegation and the manner in which it was done.

It is further submitted that the mother’s financial circumstances are not a relevant factor when considering whether to impose an order for costs. That issue is very much relevant to enforcement although I am referred to the likelihood that the mother may have sold land and have ability to pay. I do not however rely on this when considering whether to make an order for costs and then as to what those costs should be.

In my judgment Cost orders must be case and fact specific. In this case as I have stated above and found, the father faced allegations of the most serious nature and which were emotionally exhausting. He felt compelled to secure legal representation not only to protect himself but also his children. There was extensive involvement by the Local Authority and the children were represented by a Rule16.4 Guardian. I have found that the father’s focus has been on the welfare of his children and he is now left as a single parent meeting the complex needs of the three children in circumstances where the mother has absented herself from their lives. The mother pursued her allegations, even in light of evidence from the local authority about their welfare and presentation when seen at home with their father and in light of evidence from the children’s school about their experiences in her (the mother’s care). She held to the truth of her allegations even after my judgment.

In considering costs, I do remind myself that there were some findings about the father’s historic behaviours but this is set against the manifestly more serious allegations I found not proved against the father as pursued by the mother.

I am told that the father does not own his own home as he cannot afford to. He is, I am told in debt to former solicitors, family friends and others. He is now the sole carer for the three children.

He is a father who has attended court diligently, has worked hard to minimise conflict post the fact-finding hearing, but faced a mother who took a strident view of him and the risk she says he continued to pose to her, notwithstanding my judgments and findings. I note that the mother did not at any stage withdraw her allegations rather she held firm to them and finally decided not to have any relationship with her children as she saw this as a risky situation to leave both herself and her children in.

I find that on the facts of this case that the mother’s conduct in pursuing such extreme allegations are of such a nature that costs considerations do apply in these proceedings. I note the findings I made about the mother’s conduct, her questioning of the children, her ongoing persistence in alleging that the father had behaved in a sexually inappropriate way to her eldest daughter (who denied any such behaviour and withdrew from a relationship with her mother). The allegations that the father had been involved with a former employee to the children and even fathered a child with her. Her conduct in pursuing many of these allegations was reprehensible and unreasonable.

There were elements of the fact-finding hearing which would not bear the same assessment and which related to the acrimony and mistrust between the parents and historic issues of poor conduct. These were however not of the same nature and serious impact as the allegations directed at the father.

The costs schedule I have is prepared in a somewhat unconventional way both in a conventional N260 (as at the date of November 2024 (the fact finding hearing) and then additional funds post that date when father was represented direct by Ms Barnett of counsel. Father prepared it as best he could acting in person. It has left me looking at a total costs amount of in excess of £142,000, with at least £36,000 being directed to counsel’s fees. I note that some of the costs were incurred prior to some of the more serious allegations being made and at earlier stages of the court process.

Looking globally at the question of costs I make an order that the mother shall pay a contribution to the father’s costs of £96,000, this representing approximately 65% of the father’s total costs. If my calculations are incorrect then the sum to be paid is 65% of the total of the father’s costs from the date the matter was heard by HHJ Patel to the final hearing.

This is my judgment.