This recent case considered an application by a father to prevent the mother relocating within England with the children. The father made the application on an urgent basis and sought an exception from the requirement to attend a MIAM prior to making an application, and the court considered whether a costs order was necessary due to the father’s litigation conduct.
Background
- The mother wished to relocate the child from Oxfordshire to Northumberland, to be closer to her family, whom she relied upon for support. The proposed area in Northumberland provided more affordable housing and schools with smaller class sizes.
- They attended one mediation session, before the father submitted an urgent application to the court to seek to prevent the mother removing the child from Oxfordshire.
- On consideration of the welfare checklist, the court gave the mother permission to relocate the child to Northumberland. The court told the father that he may use his six weeks annual leave to visit the child, and suggested that he was able to travel to Northumberland every other weekend to reduce the child’s travelling time.
- The costs for the child to see the father emanating from the relocation was to be shared equally between the parties, with the mother paying for the child to visit the father, and the father paying for him and his half brothers to visit the child in Northumberland.
- The court decided the application by the father should not have been made on an urgent basis and that he was therefore not entitled to an exemption from completing a MIAM. The court made an order that the father was to pay the full costs of the Urgent Hearing in addition to half of the mother’s costs for the Final Hearing.
The General Rule on Costs Orders
Family Procedure Rule 28(6) permits the court to order one party to pay the other party’s costs, where the litigation conduct of one party renders it appropriate to do so.
Costs orders in Children Proceedings are rare. The courts often take the view that a costs order will not be in the best interests of the child, since it reduces funds available to meet the family needs; an applicant may be deterred from taking court proceedings; and the tension between the parties may be heightened, causing more friction between them.
Therefore, a costs order is only awarded where the litigation conduct is unreasonable. Section 28(7) lists seven factors the court must have regard to:
A) A failure to comply with the Family Procedure rules or an order of the court;
B)A failure to attend a MIAM or other non-court dispute resolution;
C) Open offers for settlement;
D) Reason for pursuing or contesting an application;
E) The manner in pursuing or responding to an application;
F) Any other relevant litigation conduct;
G) The financial effect a costs order will have on the parties.
Why was a cost order made in this case?
The court concluded that in light of the section 28(7) factors, the father’s litigation conduct was unreasonable. Significantly, the court decided that it was not necessary for the father to have made the application on an urgent basis. It was considered that the father brought the application to avoid the MIAM requirement (FPR 28(7)(aa)), and in doing so falsely claimed that the child was at immediate risk of relocation. There was no evidence brought forward to suggest that the mother would imminently relocate the child, and no evidence to warrant forgoing the MIAM. As such, the father was ordered to pay the full costs for the Urgent Hearing.
Whilst the court did concede that it is very likely the matter would have come to court regardless of the urgent application, the father was still ordered to pay half of the mother’s costs for the Final Hearing. The reasons given for this decision was that the father had a very weak case. Rather than providing detailed and reasonable proposals regarding the children (FPR 28(7)(a)), he instead focused his evidence on attacking the mother (FPR 28(7)(c)&(d)). This litigation conduct was considered unreasonable and increased costs for the mother. It is important to note that the court again indicated that mediation would have identified the weaknesses in the father’s proposals and the mother would have had the opportunity to present her valid reasons for relocation.
What have we learnt from this case?
This case emphasises the need to carefully consider whether it is necessary and reasonable to bring an urgent application. The courts give great weight to the Family Procedure Rules, including the need for attending a MIAM. Should a MIAM be purposely evaded without justification, the party may be at risk of a cost order.
If you have any queries regarding costs orders in private children law, or any aspects of family law, then please contact a member of the Field Seymour Parkes family team.
Article contributor, Hannah Straw, Graduate Apprentice Solicitor
