A (A Child) (Private law proceedings: costs order), Re

I am going to give a short ex tempore judgment. If any party wants further reasons, then you can ask for them at the end.

This is an application for costs in respect of this hearing. This hearing is an application in ongoing proceedings brought under the Children Act 1989 (“the Children Act”) in respect of A, a child who is aged very nearly 2 years old.

The proceedings have been brought by his mother, who I will refer to as "the mother". She has been represented by Ms Ward of counsel.

The respondent to the proceedings is his father, who I will refer to as "the father", represented by Mr Fraser of counsel.

The applicant applies for orders under section 8 of the Children Act in respect of A. As part of these proceedings, an application has also been issued using form C2 by the father for an order under section 8 of the Children Act.

The matter was last before the court in August of this year, when District Judge MacCuish made a number of case management directions, listing the case to a Dispute Resolution Appointment, which has been listed on 19 December.

The first hearing had taken place some weeks before, when Her Honour Judge Troy had made urgent on-notice prohibited steps orders preventing A from being removed from the jurisdiction of England and Wales. Those orders were necessary and remain in place because prior to these proceedings being issued the family had been living outside of the jurisdiction of England and Wales in a non-Hague Convention country.

I need not go into the circumstances surrounding the family living in the non-Hague Convention country or returning to this jurisdiction in this judgment, save to say that at the time the proceedings were issued A, his mother and the father were all in the jurisdiction of England and Wales. The father returned to the non-Hague Convention Country shortly after the proceedings were issued, where he remains. The mother and A have since June of this year remained in the jurisdiction of England and Wales.

At the previous two hearings the court has assumed jurisdiction to hear these applications. At the August hearing before District Judge MacCuish the order records in the standard pro forma wording promulgated by the senior judiciary that the court is satisfied that it has "jurisdiction based on habitual residence". At that hearing both parents were present, both parents were represented by counsel, and I have seen the order. Both counsel were instructed by solicitors.

There is a dispute, which it has not been possible for me to determine, nor has it been necessary for me to do so, in respect of what was said at that hearing: whether the issue of jurisdiction was opposed, or whether the order was simply approved having been agreed by both parties. There is a submission made by Mr Fraser, on behalf of the father, that his client did not see it until some days after it was sealed by the court. But I note that the father was represented, both by counsel and by solicitors, when that order was being attended to, agreed and subsequently submitted, so the father through his legal representatives played an active role in that order being agreed.

Shortly thereafter on 20 August the father issued a C2 application, in which he challenged the jurisdiction of the court. It is important to record that as part of his witness statement, which is a detailed document prepared with his solicitors, he does not raise, as Ms Ward points out, issues relating to the declaration on Judge MacCuish's order. The father applies for essentially these proceedings to end, asking the court to determine that whatever was put on the order from August, the court did not have the jurisdiction to consider the applications.

I pause there to remind myself that the application is an application for a child arrangements order issued in the Family Court in England and Wales.

The mother's solicitors, shortly after receipt of that application, wrote to both the father's solicitors and to the court, setting out what they saw as the clear defects in the father's position; namely that the father's position seemed to be that he sought an order for A to be summarily returned to the jurisdiction of the non-Hague Convention country, and that the correct forum for that application was the High Court, to exercise its inherent jurisdiction, where any issues as to habitual residence could properly be argued. It was the mother's solicitors' position in those two pieces of correspondence that the application was therefore misconceived.

Having received the application, Her Honour Judge Troy listed this case before me today with a time estimate of six hours. Neither party through their solicitors has sought to ask the court to reduce that time estimate set down by the Designated Family Judge for North Yorkshire.

Shortly after the father issued his C2 application, the mother issued an application for an expert in the law of the non-Hague Convention country, a barrister at a set of chambers, to be instructed to provide a report, given the issues in this case relate to whether A should live in England and Wales or in the non-Hague Convention country. That was something which District Judge MacCuish, the parties together at the last hearing, and the father himself in his initial C2 application for a child arrangements order made at the end of July all contemplated was going to be necessary.

I have had no hesitation whatsoever, in light of the clear authorities in cases such as this from the senior courts, in endorsing that application as necessary, and the parties today have agreed an amended letter of instruction without me having to get involved.

It had been suggested by Judge MacCuish in his order from August that that application, given the inevitability of it being necessary, could be dealt with by consent, with a paper application being made without the need for a hearing.

In readiness for this hearing today, I have considered the court bundle, and I received position statements or skeleton arguments prepared by counsel for both parties.

Upon considering the relevant legal principles in circumstances where the court was considering whether it had jurisdiction to determine a child arrangements order application in the Family Court in England and Wales, I considered that the provisions of sections 1, 2, and 3 of the Family Law Act 1986 were crucial. In particular the provisions of section 3(1)(b) of that Act, which clearly set out that the court in England and Wales, in circumstances where the Hague Convention does not apply and in circumstances where there are neither ongoing matrimonial proceedings elsewhere in the United Kingdom, and where the child is not habitually resident in any other constituent part of the United Kingdom, has jurisdiction by virtue of the child being present in England and Wales, it being an agreed factual position that A has, since the inception of these proceedings, been present in England and Wales.

I observed at the outset of this hearing that the skeleton argument prepared on behalf of the father by Mr Fraser did not address the provisions of the Family Law Act 1986, and in submissions and exchanges with Mr Fraser I explored, given what I saw as the very clear statutory framework, whether he on behalf of the father sought to submit that this court did not have jurisdiction, which was the basis upon which the C2 application had been lodged, and upon which this hearing had been listed.

I stood the matter down to allow Mr Fraser to take his client's instructions. When the court resumed, Mr Fraser confirmed that, having taken his client's instructions, he did not seek to argue that the court did not have jurisdiction. That issue therefore fell away and it was effectively conceded by both parties that the court has the jurisdiction to deal with the application before it.

There remains a factual dispute between the parties as to whether A has acquired, either now or at the inception of these proceedings, habitual residence. I do not need for the purposes of this judgment to go into the competing arguments which are clearly set out in the skeleton arguments prepared by counsel for both parties. The fact of that dispute will, by agreement, form a series of recitals to the order I make today.

It is against that background then that the mother seeks her costs occasioned by this hearing, and I have considered the N260 schedule which has been lodged within the requisite timescales, and served upon the other side, and I have received submissions briefly in writing and expanded orally from counsel for both parties.

Turning to the legal provisions relating to costs, of course I have got to consider the exercise of my jurisdiction in accordance with the overriding objective in Rule 1 of the Family Procedure Rules 2010. The relevant provisions relating to costs are set out in Part 28 of those rules, supplemented by Practice Direction 28A. Rule 28.1 sets out that the court may at any time make such order as to costs that it thinks just. The provisions of the Civil Procedure Rules Rule 1998 and Rule 44.2 are applicable in family cases, save that the general rule in civil cases that costs follow the event are disapplied in private law Children Act proceedings.

There are many authorities in the High Court and in the senior courts in respect of costs orders. I have not been referred in any detail to many of those authorities by counsel and so do not set any specific authorities out here, save to say that I have borne in mind two judgments from the Supreme Court: Re S (a child) [2015] UKSC 20, and Re T [2012] UKSC 36.

I have also considered the earlier Court of Appeal decision referred to by Mr Fraser, Re T (a child, order for costs) [2005] EWCA Civ 311. Additionally, I was provided shortly before this hearing started with a first instance judgment of Sir Andrew McFarlane, President of the Family Division, neutral citation Re S [2022] EWHC 2604 (Fam).

In respect of the legal principles the following propositions can be drawn from the rules and the authorities:

I bear all of those principles in mind when considering my decision.

In support of the application Ms Ward invites me to find that the father's litigation conduct has been unreasonable and/or reprehensible. Ms Ward submits that we are here because the father chose to issue his C2 application when the court had previously assumed and the father had been at a hearing where the court had issued an order in which jurisdiction was established. The father has not sought to revisit or otherwise appeal the terms of that order.

Ms Ward draws me to the chain of events that, when the C2 application was issued, her instructing solicitors sought to raise at the earliest possible opportunity what they saw as the clear deficiencies in the application.

Ms Ward observes that the wording of the Family Law Act 1986 is clear, crystal clear. In circumstances where the father is represented by solicitors and has instructed counsel, she says it ought to have been obvious from the outset that the application regarding the court's jurisdiction had absolutely no merit.

The consequence she says is that this hearing has been listed in which the mother has incurred the costs of instructing counsel, instructing her solicitors to prepare documents, and that that has been a waste of time, and not necessary.

Dealing with the anticipated submissions that the hearing would be necessary in any event to deal with the expert application, Ms Ward invites me to the conclusion first of all that it could have been dealt with on paper, everything had been agreed, that has been borne out by the way that the issue of the expert has been the subject of consent today; and secondly, that such an application would not have required six hours of court time.

In drawing my attention in particular to the judgment of Sir Andrew McFarlane in the Re S [2022] case, Ms Ward invites me to the conclusion that, whilst a slightly different set of facts, the point was the same, namely that the court was dealing with an issue relating to jurisdiction in circumstances where the answer was obvious.

Opposing the application, both in principle and in quantum, Mr Fraser distinguishes the case of Re S. He observes that the background and inception of the proceedings in Re S, which are referred to in the linked judgment within Sir Andrew McFarlane's judgment, are completely different to these.

Mr Fraser invites me to consider matters from the father's position. He was the recipient of and respondent to an application for a prohibited steps order, which was made on two days' notice to him. He attended at the hearing before Her Honour Judge Troy on 26 June in person, before having to leave thereafter to the non-Hague Convention country.

Mr Fraser invites me to consider that, whilst the father has instructed legal representatives, these are representatives acting in a different jurisdiction to which the father was living and was familiar with, and that the issue of jurisdiction is nuanced law.

Mr Fraser invites me to consider that there remains confusion as to what was discussed or decided in respect of jurisdiction at the hearing on 4 August before District Judge MacCuish.

In those circumstances Mr Fraser says that the father's conduct is not reprehensible or unreasonable, that it may be misguided, that I should not use a costs order to punish the father in those circumstances.

He submits that the court should consider the impact of making such an order on A's welfare.

Mr Fraser notes that the time estimate of six hours was listed by the court of its own motion, and, says that this hearing has in any event been purposeful, because it has: 1) clarified the issue as to what is recorded in the 4 August order; and, 2) allowed the application for a specialist in the law of the non-Hague Convention country to be properly resolved.

Mr Fraser observes that in circumstances where the father disputed jurisdiction, it is not surprising that he did not engage as a paper exercise with the mother's application for expert evidence.

Mr Fraser queries some of the costs set out in the N260, in particular the attendance of the mother's solicitor at the hearing, and the quantum of the fee charged by Ms Ward.

Turning to my analysis and my decision:

The reason that this hearing was listed was because the father made a C2 application in which he sought to establish or assert that this court did not have the jurisdiction to hear the section 8 order application. Within his statement prepared in support of that application, and echoed in the skeleton argument drafted by Mr Fraser for this hearing, the father relied heavily upon the principles of habitual residence and on authorities and considerations applicable to applications in the High Court, where the court is being invited to exercise its inherent jurisdiction. That is made explicitly clear in the documents where the father states on multiples occasions that the order he is inviting the court ultimately to make is one for A to be summarily returned to the jurisdiction of the non-Hague Convention country.

As set out in the emails sent by the mother's solicitors the day on which the C2 application was issued, that misses the point. These applications, including the application made by the father earlier in the proceedings, are for a child arrangements order under section 8 of the Children Act 1989. They have been issued in the Family Court, they have been heard by judges at the level of district judge and circuit judge. But, even if they had been heard by a judge who is a High Court judge or a section 9 ticketed judge, they would still be applications in the Family Court for orders under section 8 of the Children Act. There have been no applications, despite the same being intimated for months, within the High Court for the exercise of the inherent jurisdiction.

In those circumstances I do not accept Mr Fraser's submissions to me that the law was nuanced. I accept Ms Ward's submissions to the court that the law was crystal clear. The wording of the Family Law Act 1986 has been in force for pushing 40 years, it is clear, unambiguous, and is designed to ensure that the issue of jurisdiction is dealt with speedily and clearly.

That is borne out by the exchanges that I had with Mr Fraser and the relatively swift change of position of the father thereafter.

In my judgment it is surprising that, despite being represented by lawyers, the father has pursued this application, and indeed that he made it in the first place. The issue before the court is not one of habitual residence, it is whether the court has jurisdiction, and that matter could and indeed was dealt with relatively swiftly.

I therefore accept Ms Ward's primary submission that this hearing was not necessary in the circumstances. Whilst there may have been a dispute over what is contained in Judge MacCuish's order, that is not the subject of the application. What I mean by that is: This is not an application to vary or indeed, to use Ms Ward's more extreme suggestion, appeal Judge MacCuish's order of 4 August. It is a fundamental point that has been raised by the father, which is that this court does not have the jurisdiction, and that these proceedings ought to end.

Even if the father is right about the recording relating to habitual residence on the order of 4 August, the court would still have had jurisdiction in any event, as it continues to do so by virtue of section 3(1)(b) of the Family Law Act 1986.

That was pointed out to the father's solicitors as early as the day of the application being made. It was pointed out thereafter in the email to the court sent the following day. It has been pointed out again in the skeleton argument prepared by Ms Ward. But it was not until this hearing had commenced that the father accepted what in my judgment was a crystal clear legal provision.

Whilst the court may have sympathy with the father in respect of him being a national of a non-Hague Convention country, not having any direct experience of the English and Welsh legal system, I remind myself that the father has been represented more or less throughout these proceedings, and certainly at all the material times, by solicitors and counsel.

I have considered the judgment of Sir Andrew McFarlane P. Whilst I acknowledge that the facts of the case are different, the kernel at the heart of the President's decision is that he was dealing with a situation regarding jurisdiction which was obvious, and the conclusions of which were inevitable.

Whilst I bear in mind that that judgment is a first instance High Court decision rather than a Court of Appeal judgment, it is a judgment of the President of the Family Division and it is therefore an extremely persuasive authority, and I am drawn to the conclusion that the similarities are striking when compared to the present case.

But I must apply matters in accordance with Rule 28, and in accordance with the lines of authorities in those cases which are binding upon me, namely authorities from the Court of Appeal and the Supreme Court.

In my judgment the father's pursuit of this application in the circumstances that I have described above does amount to unreasonable litigation conduct.

I deal very briefly with the scope of this hearing, and whether it would have been needed in any event in respect of the expert evidence application:

Whilst I understand Mr Fraser's submission regarding the father not engaging in agreeing the order for an expert in circumstances where he disputed jurisdiction, for the reasons I have already given, the father's dispute in respect of the court's jurisdiction was unreasonable in and of itself. Had the father not taken that unreasonable position, he may have been able to agree, and indeed in my judgment would be highly likely to have agreed, to the directions proposed.

I acknowledge in making that assumption that there is a degree of crystal ball gazing, given that did not in fact happen. However, all of the objective markers point to that being likely to have taken place: One, it was the father himself who raised the issue of necessity in his initial and earlier C2 application; two, that was clearly in the contemplation of the judge and the parties, as set out in the directions and recitals to the order from 4 August; and, three, the issue of the expert was dealt with quickly without any recourse to the court at all, either in respect of the necessity, identification, scope, specific questions or indeed, although it has not been finalised, likely the issue of the letter of instruction.

So, I do not accept the submission that this case would have inevitably needed to come back before the court to deal with that application. It has just so happened that there has been sufficient time to deal with it at today's hearing. Indeed, given the dates of when the applications were made, had it been dealt with by consent, it would probably have been dealt with, and the expert well instructed, as of today's date.

In respect of the listing of this matter, that is a matter that is in the discretion of the judicial function. It has been listed for six hours because there are potential complex issues. It is not for the court to deal in detail with the merits of any applications when C2 applications are listed. Indeed HHJ Troy listed this case some time ago, and no party has sought to suggest that six hours is excessive. Indeed it has taken today, notwithstanding the fact that the key issue was agreed, most of the sitting day when I take account of the need to take lunch breaks, time for people to take instructions and other matters in a recorder's list. So, the very fact that we are here at 3.05pm suggests that six hours was not an excessive listing in any event.

Taking all of those matters into account, whilst considering first of all that costs orders are unusual, and are the exception rather than the rule, reiterating that this order is not designed to punish the father but to reflect that the application was wholly without merit, and wholly misconceived from the outset, and has as a result occasioned costs being spent by the mother which in and of themselves could have been spent on A, who remains in her care, I am satisfied that I ought to make a costs order, and that the legal test set out in the authorities, namely unreasonable litigation conduct, is overwhelmingly made out, for all the reasons that I have given.

I then turn to quantum and whether the costs were reasonably and proportionately incurred and reasonable and proportionate in amount. I have explored with Ms Ward some of the matters which gave me cause for concern on the statement of costs. Given that this is a one-day hearing, it is appropriate to carry out a summary assessment and neither party invites me to do anything else, so I am going to do that now. I would be grateful if counsel could keep a note, and work out the calculations after the hearing:

Going through the costs schedule, I note that this is a case in which three fee earners have been working on the case: Ms Wilkinson, who has got conduct of the case; Ms Gillen, senior partner; and Ms Green, whose role I do not know, I assume a junior solicitor, a paralegal or something similar.

Looking at attendances on the mother, the mother claims 3.7 hours for Ms Wilkinson, and 1.3 hours for Ms Gillen, at an increased rate. I am told that that amounted to taking instructions on the voluminous matters set out in the father's documents and preparing the response.

Whilst I accept that some attendances on the mother are inevitably needed, I accept that the primary person carrying out that would have been Ms Wilkinson, who has primary conduct of the case. I am not satisfied that the hours claimed are reasonable or probabilities in the circumstances of this case. I am going to allow the following: 3 hours for Ms Wilkinson at £320 per hour; and 0.75 hour for Ms Gillen at £380 an hour.

I should say I am not going to reduce the hourly rates claimed by any of the solicitors. In my judgment for a respected family law firm of solicitors, those fees are not outwith market rates as reasonable and proportionate.

Turning to attendances on opponents, 0.1 hours are claimed at Ms Wilkinson's rates.

I have already referred to the letters which have been spent, and I am satisfied that that is reasonable and proportionate.

In respect of attendances on others, 2.8 hours are claimed at Ms Wilkinson's rates. I have noted already the letter to the court sent on 21 August. I am told that additional matters are claimed in there.

I am not satisfied that 2.8 hours is appropriate. I am going to reduce that to 1.5 hours at £320.

In respect of attendance at the hearing, this is something that I raised myself and Mr Fraser also raised in strong terms, observing that the case was not listed for seven hours. I assume there are travel times included in the seven hours claimed and it is Ms Wilkinson who has attended at £320.

Ms Ward invites me to conclude that that is not unreasonable, for her client to be supported by her solicitor, given that there is a small child, that there are allegations of serious domestic abuse which makes the mother particularly vulnerable, and that the fundamental issue of jurisdiction was in issue.

Mr Fraser submits that in circumstances where the mother has instructed experienced counsel, and has the assistance of her IDAS worker, in circumstances where the father is not present, and in which he is not in fact in the jurisdiction, such attendance is neither necessary nor reasonable nor proportionate.

I have been asked by Ms Ward, if I am not with her on her primary position, to reduce either the number of hours or the hourly rate.

I am not satisfied that that attendance is necessary or proportionate. I accept Mr Fraser's submissions; the mother has had the benefit of very experienced counsel, she has been supported, and doubtless has welcomed the support of her IDAS worker who sat through the hearing. I am not satisfied, assessing matters on the standard basis, and finding in favour of the father where there is any dispute that those figures are necessary, reasonable or proportionate. So, I discount the entirety of those figures.

The final matter on the list is Ms Ward's fee.

Ms Ward is a very experienced family practitioner, who was called in 2011. She has prepared a very detailed and comprehensive skeleton argument.

Whilst Mr Fraser invites me to the conclusion that, if I am satisfied that the law was crystal clear, such an experienced barrister is not needed, I am satisfied that the mother reasonably instructed Ms Ward, I am satisfied, based upon Ms Ward's experience and her level of seniority, the fact that this case was listed for a day, the fact that there are additional costs built into that brief fee, including the preparation of a skeleton argument and possibly a conference, that the figure claimed is reasonable and proportionate in all the circumstances. I am going to allow the fee in its totality.

So, counsel hopefully have taken a note. If I can ask counsel to agree the figure, if I stand you down perhaps for 15 minutes, if you have not done so already, just to agree the figure of costs, and you can pass either a note through or I will come back on the Bench if there are any issues in dispute.

So, that is my decision and judgment in respect of costs. The figure will be clarified by counsel, and endorsed by me, provided that is an accurate figure. Does any party require amplification or clarification in respect of any part of my judgment. Ms Ward?