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Who pays the costs in children applications in the family court?

Who pays the costs in children applications in the family court?

Generally speaking, in England and Wales, in family court proceedings involving children, it is usual for each party to be responsible for their own legal costs. The court typically doesn’t order one party to pay the costs of the other in children’s cases, as the primary focus is on the welfare and best interests of the child. However, in some exceptional circumstances, the court may make a different order regarding costs if it believes one party has acted unreasonably or in bad faith.

In the recent case of Re A and B (children: expert’s reports) [2024] EWHC 1120 (Fam)

the mother unsuccessfully applied for costs following a successful appeal against an order for the appointment of a psychologist to do a family assessment. She sought costs against the father and against the children’s guardian.

This ruling confirms the general principle that in private law children proceedings, costs orders generally are rare. However, the court has discretion to make an order as to costs if it is just to do so (FPR 2020 r.28.1), having regard to all of the circumstances. Factors include the parties’ conduct and whether a party has succeeded in their case (whether in whole or in part).

In his ruling, Justice Cusworth also highlighted an important principle made clear by Baroness Hale in 2015. In children cases the practice of not making an order for costs absent reprehensible behaviour or an unreasonable stance extended to appeals as well as first instance trials; and to private law as well as public law children proceedings.

The Judge also concluded that the guardian’s position was neither unreasonable nor reprehensible and there would be no costs order against them.

Might the judge have made a costs order if he found the guardian to have acted unreasonably or reprehensibly?

It seems unlikely given his subsequent comment, “It would be… a difficult precedent if guardians in such proceedings as these found that, if ever there was an appeal by a parent against a court’s decision, they might find themselves liable for a costs order if they had not supported the winning side on that appeal. Their role is to make submissions to the court from the point of view of the child, not coloured by the competing interests of the other parties, and I am entirely satisfied that this is what the guardian in this case has done.”

No costs order was made against the father either. He was not unreasonable in the appeal (bearing in mind he was unrepresented).

Furthermore, the making of a costs order would only be likely to further entrench the parties, which would not serve the interests of the children at all.

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 15th January 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of the capital’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here