AM v RF

The appeal is dismissed;

The question of costs is reserved;

The proceedings are adjourned for the parents:

The matter will be re-listed before myself on the next available date after 56 days (which may be further adjourned by agreement if NCDR is proving effective and more time is needed to conclude) for a 30 minute hearing for the Court to take stock of the progress made by the parents and to give further directions or make an order as to the costs of the appeal.

Each parent will file and serve a position statement regarding their progress through NCDR at 1200 noon on the day before the next hearing limited to 500 words.

The Court is concerned with the welfare of C, a boy born on 3 April 2019. C is aged 4 years. C’s mother is AM and his father, who has parental responsibility, is RF. This is the hearing of an appeal from an order may by the Lay Bench on 19 February 2024. The mother is the appellant and is represented by Miss Targett-Parker of counsel. The father is represented by Miss Allman of counsel. The hearing was held remotely via Teams; both parents attended. The appeal was conducted on submissions. Neither party sough to admit additional evidence.

The order being appealed against is an order made under Section 8 of the Children Act 1989. The terms of the order are detailed as they cover living arrangements and provide for defined periods to be spent with each parent on a bi-weekly cycle and during school holidays. The relevant terms of the order are set out on paragraph 8 of the order:

It is clear from the wording of the order and the Magistrates written reasons, which I have read, that the intention was to make an order which supported the intention that C should have a home with each parent and that his time should be shared quite equally between his two homes. Both counsel agree with the Court that the wording of the order leaves something to be desired but this is a detail that can easily have been rectified without an appeal being issued. The appellants mother’s issue is with the “spirit” of the order. She is of the view that C should live with her and have contact with his father at defined times. Since the parents separated, 19 months before the order was made, C has lived with his mother; there has been in place (at the instigation of the mother) contact arrangements with the father along the following lines which is accepted is accurately recorded in the magistrate’s reasons was:

The father made an application for an order under s8 and the above order resulted. The terms of the order broadly reflected what the father wanted; the mother wanted the living and contact arrangements to remain as they had been at the time of the application. The mother appealed against the decision. There has (understandably having regard to the relevant test) been no application for a stay. The mother is to be commended for implementing the terms of the order pending appeal.

I pause at this point to make relevant observations upon the relationship between the parents. It is clear from all the evidence that the parents are unable to put their antipathy for each other aside for the sake or parenting C; this is very sad. It is the duty of parents to exercise their parental responsibility in a manner that serves the welfare of their child. I feel very sorry for C; if the parents continue the way they are doing, he will grow up in the middle of a toxic environment. This will cause him emotional harm and lead to all manner of developmental issues in the future. Meanwhile his parents will lose out. Instead of being able to enjoy all the benefits that co-parenting can bring, they will be trapped in a cycle of acrimony resulting in parenting becoming increasingly traumatic as C grows older. I intend to do all that I can to break this cycle in the way that have indicated I will treat the parents claims for costs arising from this appeal, the aggregate sum of which is around £20,000.

The appellant appeals

No point is taken as to the wrong paragraph reference and Miss Allman generously accepts by implication that this is an error of drafting.

Accompanying the N161 the appellant filed and served is a document headed Grounds of Appeal dated 8 March 2024. There are two grounds of appeal contained within the document. Each ground is supplemented or expanded upon by 23 sub-paragraphs. I do not propose to set these out as they can only be described as “narrative”.

HHJ Brandon gave appeal directions on 15 March 2024 listing the appeal hearing today and making further directions including ordering that the appellant file a Skeleton Argument complying with FPR PD 30A by 13 May 2024. A Skeleton Argument dated 20 March 2024 was filed. Pursuant to the order of HHJ Brandon, the Respondent filed his Skeleton Argument dated 26 April 2024.

On the morning of the appeal hearing newly instructed counsel for the Appellant, Miss Targett-Parker filed a document titled a “Position Statement”. Miss Allman questioned whether permission should be granted to file the second document. Following submissions, I held that in so far as permission was needed, it would be granted and duly considered the document. I was of the view the further document may be helpful in it confirmed that despite the notice of appeal, which is a difficult document to follow, and the discursive Grounds of Appeal (taken with the sub-paragraphs), Miss Targett-Parker’s document confirms in paragraph 14 that the appellant appeals on two distinct grounds only which are :

The refined grounds of appeal are:

The Court received oral submissions from Miss Targett Parker during which she acknowledged that the grounds of appeal as drafted overlapped in their coverage of facts and that she would address the Court on:

The Respondent, through his counsel Miss Allman takes great exception to the manner in which the appeal has been presented. It is submitted that the grounds of appeal were not clearly set out. The two refined grounds of appeal essentially amount to the same thing: that the mother disagrees that the arrangements put in place are in C’s best interests. It is submitted that in so far as the appeal is based upon the manner in which the Magistrates carried out their welfare valuation the appeal is flawed in that in the context of this case the Magistrates demonstrated in their reasons that they considered what was being asked for and measured this against the welfare checklist and formed a conclusion that was well within their discretion to reach.

This was a straightforward case involving where a child should live and how much time he should spend with each parent. The Magistrates did not receive oral evidence from either parent and proceeded on submissions only. Whether in this case the Magistrates might have been better to hear evidence, to get more of a flavour of how the parent might approach any future arrangements is irrelevant. This Court respects the Magistrates decision to conduct the hearing in the manner they chose.

Following hearing the submissions the Magistrates conducted a detailed analysis of the s1(3) checklist. This informed their decision. The decision they reached was entirely consistent with what they considered would meet the welfare of the child.

Regarding the submission that the Magistrates were in error for having failed to carry out a global holistic analysis before reaching their decision I say the following. The Magistrates were being asked to decide which of the parent’s respective choices better met the welfare needs of their child. They were not being asked to consider a raft of public law orders and all their variables: care; special guardianship; supervision order; adoption, etc. In any event they were under no duty to introduce into the mix of options those arrangements that they had not been asked for. These are private proceedings between two parents. In my judgment the Magistrates exercised their discretion proportionately and properly. The written reasons demonstrate a detailed analysis of the Welfare Checklist and the Magistrates understanding of their obligation to place the welfare of the child as their paramount consideration. It might be that had I heard the case, I might have made a different order and divided the time C spent with each parent but that is not a ground to allow an appeal.

In so far as the Magistrates failed to have sufficient regard to the parents antipathy to each other and their apparent inability to communicate this is a misguided ground for an appeal. Parents have a duty to communicate. Neither parent has a physical or mental disability precluding them from communicating. Indeed each parent is (from the text evidence) equally capable of being vitriolic and inappropriately unpleasant to each other.

The Court was wrong and exercised its discretion in contravention of the child’s best interests in making an order that C should live with the Mother and Father on a 50//50 basis.

The Court was wrong and exercised its discretion in contravention of the child’s best interests to order the division of time that it did which results in C having only one night blocks with his Mother Monday to Friday each week and only one longer block on alternate weekends when the Mother is working thus restricting his quality time with her.

The is the second part of my judgment in this appeal and deals with the question of costs. The judgment is delivered extempore.

Following Part 1 of my judgment handed down in May this year, the matter comes back to court today in the manner that I indicated it would. The hearing was originally listed in July of this year and an application was made by the parties for hearing to be adjourned to give them a further opportunity to engage in mediation, the court granted that request and the matter was relisted today, 2^nd October. Chronologically therefore, the parties have had since May to take on board the comments that I made in the judgment and to engage meaningfully, actively and willingly in the mediation process, I will return to that engagement, shortly.

The first question I must ask myself is, is an order for costs appropriate in principle in relation to the appeal? At this stage, I pause to say that the father seeks his costs in relation to the appeal only, not in relation to the original proceedings and to his, I would say great credit, and upon I am sure excellent advice, he does not seek his costs for any consequential matters since the handing down of the judgment. I say that because I am sure he has incurred further substantial costs since my initial judgment.

It is clear from the Father’s summary that his solicitors have been actively involved in helping him to arrange the mediation process; that greatly assists the court because the prime issue that the court considers is whether to make a costs order or to consider if it is appropriate to make a costs order in principle in relation to the appeal.

I turn now to the law in relation to making costs orders in children proceedings, the starting point that costs in litigation generally follow the event, a thread that follows through all forms of civil litigation, does not apply in family proceedings. Family Procedure Rules 2010 (FPR). FPR 28(1) and (2) provides:

CPR 44.2(2) says:

CPR 44.10(2) is excluded pursuant to FPR 28.2. The totality of CPR 44.10 provides:

The bottom line is that ‘costs follow the event’ does not apply in children proceedings. That position has been clarified by the Supreme Court in Re S [2015] UKSC 20. and was summarised by Lady Hale, who held the same principle applies as private to public law proceedings. She quotes Lord Philips who says at paragraph 44 of Re T:

Lady Hale then makes the following observations that:

At paragraph 20, Lady Hale reiterates that the child’s welfare is the paramount consideration and this applies:

Lady Hale goes on to say that:

In essence, there are two stages when making an order for costs in circumstances such as the present case 1) has a party’s conduct been reprehensible, another which is exclusive 2) has a party’s stance been beyond the band of what is reasonable? So, at this point, I go back to my judgment in the appeal. In my judgment I was very clear that the decision of the Magistrates was unassailable It was a decision that they were entitled to make; they took great care in making and it fell well short of a decision which was appealable. I recorded the fact the decision was not truly on all fours with what the father wanted but he decided to live with it and to do his best to make it work. The mother on the other hand, took issue with details of the order and formulated her appeal on two grounds, neither of which had merit and both of which supported a reasonably held belief that the mother simply did not like the order. In my judgment bringing the appeal and taking the stance that she did was unreasonable: it continued the litigation, it continued the uncertainly for the child, it created a long period of time during which it would have been very difficult for the parents to co-parent. For those reasons I am satisfied that this is a situation which gives rise to the court having the option of making an order for costs in respect of the appeal against the mother.

I now turn to the question as to whether an order should or should not be made. In my earlier judgment I deliberately and carefully went to great lengths to try to help the parents break the cycle of resorting to the court and to assist them in the parenting of their child. I explained in my judgment my reasons for doing so. I also explained the law and the current legal thinking by referring to recent cases supporting my enthusiasm for helping the parties to mediate and I warned the parents that I would decide the question of costs and that their demonstrated input into furthering negotiation would go some way to informing my decision.

So, I look now at what has happened since May; the first comment I make is this, the appeal was brought by mother, the appeal failed and yet it was the father who initiated attempts to engage the mother in mediation. Father has filed a statement dated 30.09.24 which supports a finding that virtually immediately following the handing down of judgment in writing he instructed his solicitors to assist him to find mediator. On 14^th June the father’s solicitors proposed 2 mediators. On 20^th June, the mother’s solicitors confirmed that they were happy with either. The father’s solicitors sent a mediation referral. On 15^th July father’s solicitors drafted a consent application to adjourn the hearing on 31^st July which I agreed to.

The father had his first meeting with the mediator who had been agreed by the mother on 12^th August. On 20^th August there was an appointment for the mother to meet the mediator which was cancelled on the day of appointment by the mother. On 22^nd August the mother’s solicitors confirmed they do not want to instruct Maura McKibbin as she does not hold a legal aid franchise and that they wished to instruct Tracey Winstanley; the father agreed, had his initial meeting and a joint session was agreed to take place on 21st October. I am informed that this session remains in the diary, and I hope the parents attend it.

The father’s concern is that he says when discussing matters with mother it was referenced that all sessions would have to work around her work schedule when arranging mediation which means once every 6 weeks, I am satisfied those discussions took place. The father’s solicitors wrote to the mother’s solicitors on 13^th September expressing concern but again took a sensible approach by saying a better way would be to book 4 or 5 sessions. Block booking is a common practice of mediation as it avoids delays, I pause to say that treating mediation as a session by session process is not always the best way forward, mediation often takes 2 /3 meetings, agreeing to pay for them is normal practice. If it works in the first meeting then its worked, it may have taken 3 or 4 but its worked, so I entirely endorse the father’s approach to try and secure a sustainable process, however, the mother’s solicitors confirmed that it was not possible. The father says he has done all he can to make mediation work.

I turn to the mother’s statement dated 30.09.24, she says she initially agreed Maura McKibbin but learned on the day of the first session that the likely total fees would be in the region of £2500 and this was not something that she could afford. The obvious question is why the mother, or her solicitors, did not make any enquires before agreeing that as an acceptable choice? The mother says that she immediately then contacted Tracey Winstanley, there were some difficulties arranging a first meeting and one was eventually arranged for 21.10.24. The mother expands in her statement, giving reasons why she could not engage before then: she had a new job in education and she was on a probation period; it was a job for which she had studied. At paragraph 9 of her statement, she says that Tracey Winstanley said that she could offer zoom sessions after the session on 21^st October and matters can move more swiftly, that would suggest that things were moving swiftly anyway which it is clear they were not. The mother explains in paragraph 11 why she could not agree to block booking, then she goes on to explain new difficulties the child has had which she says at paragraph 15, mediation is vital to work on matters as indicated by myself and for educational purposes and medical treatment. I cannot agree more, and it is unfortunate that it has taken 6 months for any real progress in that endeavour.

Finally, the mother tried to adjourn this hearing again until after mediation had concluded. Mr Smith, on behalf of the mother, confirmed that it was not a formal application to the court and confirmed his understanding accords with mine that it was not the intention to adjourn until mediation has concluded, it is a fluid process and parents often return to it once they have established ways of communicating with each other and agreeing matters.

My judgment could not have been clearer, the court has done everything it can to try and promote the parents to engage in mediation. Having told the parents that their input into the mediation process would inform any decision as to whether a costs order would be made or not, it would be inconsistent not to make an order if I formed the view that one parent did not engage, adequately in the mediation process. I make the following findings:

The father has filed a costs schedule at page 161 of the bundle.

My approach to the summary is to find that the overall total is a reasonable figure and I have no reason to go behind it.

I am going to make an order for costs against the mother and order that the mother pays 50% of the father’s costs payable, subject to any other application, in 28 days.